m 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 


PRACTICE  IN  PROCEEDINGS 


IN 


THE   PROBATE   COURTS 

OP   MASSACHUSETTS. 


WITH   AN 


APPENDIX   OF   UNIFORM  FORMS  AND   RULES 
Approved  by  the  Supreme  Judicial  Court. 


By  WILLIAM   L.  SMITH, 

COUNSELLOR   AT   LAW. 


SIXTH  EDITION, 
REVISED  BY  JOHN   E.    ABBOTT. 


Adapted  to  the  Revised  Laws  and  embodying  the 
Probate  Laws  enacted  in  1902. 


BOSTON: 
LITTLE,    BROWN,  AND   COMPANY. 

1903. 


Entered  according  to  Act  of  Congress,  in  the  year  1863,  by 

LITTLE,    BROWN,    AND    COMPANY, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 
Entered  according  to  Act  of  Congress,  in  the  year  1876,  by 

LITTLE,    BROWN,    AND   COMPANY, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 
Entered  according  to  Act  of  Congress,  in  the  year  1884,  bj' 

LITTLE,    BROWN,    AND   COMPANY, 

In  the  Office  of  the  Librarian  of  Congress,  at  AYashington. 

Copyright,  1894, 1899, 1903, 1904, 
By  Little,  Brown,  and  Company. 


UNIVERSITY    PRESS    •    JOHN   WILSON 
AND     SON     .     CAMBRIDGE,     U.S.A. 


3 

I 

in 
\ 

J 


PREFACE   TO   FIRST  EDITION. 


The  design  of  this  work  is  to  present  in  a  concise 
form  the  law  and  rules  of  practice  regulating  the 
proceedings  in  the  probate  courts.  The  leading 
cases  in  which  questions  of  probate  law  have  been 
considered  and  determined,  have  been  carefully  col- 
lected and  cited.  And  the  instructions  as  to  the 
formal  proceedings  have  been  prepared  with  the 
view  of  practically  aiding  the  correct  and  safe  dis- 
charge of  the  responsible  trusts  to  which  they  relate. 
The  work  is  submitted  to  persons  interested  in  the 
business  of  the  probate  courts,  in  the  hope  that  it 
will,  to  some  extent  at  least,  supply  a  want  that 
has  been  a  subject  of  frequent  remark. 

W.  L.  S. 
Springfield,  Mass.,  Sept.,  1863. 


PREFACE   TO   SIXTH   EDITION. 


The  enactment  of  the  Revised  Laws  made  neces- 
sary a  new  edition  of  Smith's  Probate  Law.  So  far 
as  concerns  probate  law  and  practice,  the  present 
edition  includes  the  Revised  Laws,  the  laws  passed 
by  the  General  Court  in  1902,  and  the  important 
decisions  contained  in  Volumes  1  to  180,  inclusive, 
of  the  Massachusetts  Reports,  together  with  a  few 
cases  which  will  appear  in  Volumes  181  and  182. 

Radical  changes  have  been  made  by  the  Revised 
Laws  as  to  property  rights  of  husbands  and  wives, 
and  a  statement  of  these  chans-es  will  be  found  in 
the  chapter  relating  to  the  Descent  of  Real  Estate. 
Not  only  this  subject,  but  also  the  subjects  of  Par- 
tition of  Real  Estate,  Appeals,  Survival  of  Actions, 
and  the  Collateral  Inheritance  and  Succession  Tax 
will  be  found  to  be  much  more  fully  treated  in  the 
present  edition  than  in  any  former  one. 

Special  attention  is  called  to  the  case  of  Abbott 
V.  Gaskins,  181  Mass.   501,  in  which  the  subject  of 


Vi  PREFACE  TO   SIXTH  EDITION. 

the  equity  jurisdiction  of  the  probate  court  is  re- 
viewed and  carefully  considered,  and  to  the  case  of 
Bartlett  v.  Slater,  182  Mass.  208. 

The  editor  trusts  that  the  new  index  will  prove 
to  be  a  convenient  guide  to  the  contents  of  this 
edition. 

JOHN  E.   ABBOTT. 

Boston,  Mass.,  January  10,  1903. 


CONTENTS. 


Page 

Table  of  Cases xi 

Index  to  Statutes xxvii 


CHAPTER  I. 

The    Probate     Courts  —  Their    Origin    and    General 
Jurisdiction 


CHAPTER  11. 


Probate  of  Wills 

Who  may  make  a  Will       

The  Facts  to  be  proved  in  Support  of  the  Will 


Section  1. 
2. 
3. 

4. 
5. 
6. 


9. 
10. 
11. 
12. 


As  to  the  Signing  by  the  Testator       .... 

As  to  the  Attestation  by  the  Witnesses    .     .     . 

As  to  the  Competency  of  the  Attesting 
Witnesses 

Execution  of  Codicils 

As  to  the  Testator's  Soundness  of  Mind  .     .     . 

Wills  Invalidated  by  Fraud  and  Undue  In- 
fluence   

Revocation  of  Wills 

Formal  Proceedings 

Proof  of  Wills  made  out  of  the  State      .     .     . 

Proof  of  Lost  Wills 

Allowance  of  Wills  proved  out  of  the  State 

Proof  of  Nuncupative  Wills      .......       83 


29 
80 
31 
31 
36 

39 
42 
44 

55 
59 
70 
78 
79 
81 


CHAPTER  III. 

Deposit,    Custody,    and   Proceedings    in  Case    of    Con- 
cealment OF  Wills  . . 


91 


Vm  CONTENTS. 


CHAPTER  IV. 

Page 

Appointment  of  Executors 94 


CHAPTER   V. 
Appointment  of  Administrators 102 

CHAPTER  VI. 
Appointment  of  Guardians 126 

CHAPTER  VII. 
Appointment  of  Trustees  —  Trusts 144 

CHAPTER  VIII. 
Removal  and  Resignation  of  Executors  and  Others  .    .     159 

CHAPTER  IX. 

Inventories   and  the   Collection    of    the    Effects    of 

Deceased  Persons  and  Wards 168 

CHAPTER   X. 

Allowances  to  Widows,  Minor  Children,  and  Others     .     177 

CHAPTER  XL 

Sale  of  Personal  Estate  by  Executors  and  Others  — 
Sales  and  Investments  by  Guardians  and  Trus- 
tees—  Temporary  Investments  by  Executors.     .     .     184 

CHAPTER   XII. 

Notice    of    the    Appointment   of    Executors,   etc.,   and 

Payment  of  Debts  and  Legacies 192 

CHAPTER  XIII. 
Insolvent  Estates  of  Deceased  Persons 211 


CONTENTS.  ix 


CHAPTER  XIV. 

Page 

Sales    of    Land    by    Executors,    Administrators,    and 

Guardians 239 

CHAPTER  XV. 

Accounts    of     Executors,    Administrators,    Guardians, 

AND  Trustees 279 

CHAPTER  XVI. 
Descent  and  Distribution  —  Advancements 320 

CHAPTER  XVII. 
Partition  of  Lands  in  the  Probate  Court 374 

CHAPTER  XVIII. 

Assignment  of  Dower  and  other  Lifk-Estates  ....     397 
Table    Showing    the    Present    Worth    of    Estates    in 

Dower 420 

CHAPTER  XIX. 
Probate  Bonds 428 

CHAPTER  XX. 

Specific  Performance  of  Agreements  to  convey  Lands 
—  Arbitration  and  Compromise  —  Sale  of  Stand- 
ing Wood  and  Timber  —  Purchase  of  Interests  in 
Real  Estate  of  Wards  —  Support  of  Married 
Women  Living  apart  from  their  Husbands — Sup- 
port OF  Minor  Children  under  Guardianship  — 
Sale  and  Release  of  a  Wife's  Interest  in  Lands 
WHEN  the  Husband  is  under  Guardianship  —  Re- 
lease of  Curtesy,  Dower,  and  Homestead  Estates 
by  Guardians  of  Insane  Persons  —  Confirmation  of 
Deff.ctive  Acts  of  Executors  and  Others  —  Con- 
tribution among  Devisees  and  Legatees  —  Writs 
of  Habeas  Corpus 448 


CONTENTS. 


CHAPTER  XXI. 

Page 

Appeals  from  the  Probate  Court 463 


CHAPTER  XXII. 
Adoption  of  Children  and  Change  of  Name      ....     479 

CHAPTER  XXIII. 

Miscellaneous   Provisions  —  Sessions    of    the    Probate 
Courts — Judges  of   Probate  —  Juvenile  Offenders 

—  Registered  Land  —  Commitment  of  Insane  Per- 
sons AND  Inebriates  —  Appointment  of  Probate 
Court  Officers  —  Actions  by  and  against  Execu- 
tors AND  Administrators  —  Trustee  Process  against 
Executors  and  Administrators  —  Annual  Returns 
of  Shares  in  Corporations  by  Guardians  —  Rights 
of  Executors  to  Vote  at  Corporation  Meetings  — 
Liability  of   Executors  for  Corporation    Stock  — 

—  Right  of  Trustees  or  Guardians  to  release  Dam- 
ages FOR  Land  taken  by  Railway  Companies  —  Em- 
bezzlement BY  Trustees,  etc.  —  Concerning  the 
Insane — Special  Trust  Funds  for  Parks  —  Fees  of 
Witnesses 488 

CHAPTER   XXIV. 
Taxation  of  Collateral  Legacies  and  Successions   .     .     506 


APPENDIX. 


Probate  Rules 527 

Equity  Rules 531 

Probate  Forms 539 


Indexes 745 


TABLE   OF   CASES   CITED. 


[the   FIGUKE8   REFER  TO   THE   PAGES.] 


B. 


Abbott  V.  Abbott 

423 

Bacon,  Appellant 

19 

V.  Bradstreet 

16,  313 

Bacon  v.  Bacon 

47 

V.  Cottage  City 

505 

V.  Gassett 

363 

r.  Foote 

145,  312 

V.  Pomeroy 

220,  495 

V.  Gaskius 

0,  8C 

,  90,  158 

Baker  v.  Baker 

397 

Abercrombie  v.  Sheldon  99, 

195,  428 

V.  Blood 

11 

Adams  v.  Adams  180, 

182, 

209,  210, 

?'.  Dening 

33 

407 

Balch  V.  Shaw 

514 

V.  Brackett 

252 

V.  Stone 

321 

322,  318 

V.  Briggs  Iron  Co. 

394 

Baldwin  z\  Parker 

46,  76 

V.  Field 

32 

V.  Standish 

429 

V.  Leland 

164 

r.  Timmins 

245,  396 

Ago  V.  Conner 

339 

Ballard  v.  Carter 

69 

Aiken  v.  Morse 

195, 

197,  218 

V.  Ives 

351 

Alden  v.  Stebbins 

197 

Baniforth  v.  Bamforth 

276 

Aldricb,  Appellant 

20 

Bancroft  r.  Andrews 

106 

251,  466 

Alger  V.  Colwell 

98, 

215,  433 

V.  Boston  &  Worce 

ster  Raii- 

Allen,  Petitioner 

253 

road  Co. 

495 

V.  Ashley  School  i 

uiid 

244,  247 

Bannatyne  v.  Bannatyi 

ie 

54 

V.  Dean 

162,  241 

Baptist  Church  v.  Roberts 

63 

V.  Edwards 

208, 

StiO.  499 

Bard  v.  Wood 

281 

V.  Libbey 

381,  388 

Barker  v.  Comins 

47 

Allendorff  v.  Gaugengigl 

404 

Barnabj'  v.  Barnaby 

449 

Allis  V.  Morton 

135 

Barnes  v.  Board  man 

387,  393 

Almy  V.  Crapo 

294 

V.  Lynch 

386,  393 

American  Legion  of  Honor 

V. 

Barney  v.  Tourtellotte 

453 

Perry 

289 

Barry  v.  Butlin 

47 

Ames  I'.  Armstrong 

429 

Bartlet  v.  Harlow 

393 

V.  Jackson         198 

253, 

297,  300 

Bartlett,  Petitioner, 

16 

,  152,  505 

Ammidown  r.  Kinsey 

315 

Barton  v.  Rice 

362 

Andrees  v.  Weller 

53 

V.  White 

437 

Arms  c.  Lyman 

378 

Bascom  i\  Butterfield 

213,  218 

Arnold  v.  Sabin        113 

116 

123, 170 

Bassett  r.  Crafts 

154 

Ashley,  Appellant 

362 

".  Drew 

1 13,  201 

Atherton  ;'.  Corliss 

31 

332,  407 

V.  Granger        203 

213 

,  307,  319 

.Attorney-General   v.  Barbour     145, 

Batclielder,  Petitioner 

358 

163,  164 

I'.  Cambridge 

120 

V.  Brigliam 

197 

Bates,  Petitioner 

411 

i\  Garrison 

161 

Baxter  v.  Abbott      46, 

48, 

49,  50,  74 

Atwood  V.  Atwood 

403 

Bay  ley  r.  Bay  ley 

66,  76,  78 

Avery  v.  Pixley 

62 

Beaman  v.  Elliott 

106 

Ayer  v.  Ayer 

209 

Bean  v.  Farnan 

449 

V.  Breed 

467 

Bemis  v.  Bemis 

.  195 

TABLE    OF    CASES   CITED. 


Xll 

[The  figures  refer 

Beniis  r.  Driscoll  422 

r.  Leonard  248 

V.  Stearns  361 

Bennett  v.  Brooks  36 

r.  KimliMll  loS 

V.  Overing  441,  442 

V.  Hussell  442,  444 

V.  Sharp  76 

r.  Slierrod  61,  68 

r.  Woodman  279,  441 

Bent  r.  Cobb  259 

Beverstock  v.  Brown  262 

Bibb  r.  Thomas  62 

Bigelow  r.  Bigelow  454 

V.  Fok'er  219 

V.  Gillott  66 

V.  Hubbard  409 

V.  Poole  362 

Billings  V.  Billings  163,  209 

r.  Taylor  402 

Blackinton  v.  Blackinton     178,  356, 

452 
Blackler  i-.  Boott  208,  359 

Blagge  v.  Miles  351 

Bla'iv,  Ex  pcute  186 

Blake  v.  Fegram     147,  281,  311,  314 

317 
r.  Ward  315,  319,  449 

Blanuliard  v.  Allen  195,  223,  236 

Blaney  v.  Blaney  252 

Bliss  V.  Lee  213 

I>lodgett  V.  Moore  68 

Blossom  r.  Blossom  403 

V.  Brightman  393 

Bogle  1-.  Bogle  165 

Boldry  i\  Parris  37 

Bonncmort  i:  Gill  99,  476 

Booth  V.  Blundell  54 

Borden  v.  Jenks  149,  406 

Bordman  v.  Smith  227 

Boston  V.  Bobbins  29,  450 

Boston  Bank  v.  Minot  499 

Boston  Safe  Deposit  Co  v.  Mixter  189, 
239,  248,  254,  258,  264,  270,  275 
Boulton  r.  Beard  295 

Bovvditch  V.  Banuelos  164 

V.  Raymond  220 

I'   Soltyk  16 

Bowdlear  v.  Bowdlear  350,  483 

Bowdoin  1-.  Holland  104,  105 

Bowen  v.  Hoxie  350,  352,  460 

Bowers  v.  Hammond  222,  236 

Bowker  v.  Pierce  307,  311 

Boj'den  r.  Mass.  Insurance  Co.   206, 
20H,  219,  221 
Boylston  v.  Carver  396 

Boynton  v.  Dver  292,  293,  .307,  308 

464 


to  the  Pages.] 

Boynton  r.  P.  &  S.  Railroad   288, 293 
Bradford  r.  Forbes  196 

V.  Monks  145 

Bradley  v.  Brigham  290 

Bradstreet  v.  Butterfield        144,  145 
Brant  v.  W'ilson  66 

Brazer  v.  Clark  4-39 

V.  Dean  130 

Breed  v.  Pratt  49,  53 

Brettun  r.  Fox  31,  339,  423 

Brewster  v.  Brewster  303 

Bridge  v.  Bridge    296,  299,  317,  474, 

475 
Brierly  v.  Equitable  Aid  Union  170 
Briggs  V.  Barker  471 

Brigham  v.  Boston  &  Albany  R. 

R.  Co.  254,  258 

V.  Elwell  293,  294 

V.  Fayerweather  5 

V.  Hunt  244 

V.  Wheeler  131 

Brimmer  v.  Sohier  48 

Bristol  County  Savings  Bank  v. 

Woodward  221 

Broadway    National    Bank   v. 

Wood  231 

Broderick  r.  Broderick  38 

Brooks  V.  Barrett  49 

V.  Brooks  445 

V.  Jackson  294 

V.  Lynde  207 

V.  Rayner  196 

V.  Rice  438 

V.  Tobin  165,  285,  438 

V.  Whitniore     159,  430,  431,  435 
Brow  V.  Briglitman  128 

Brown  v.  Anderson  297 

V.  Baron  319 

V.  Brown  44 

V.  Corey  15 

V.  Cushman  113 

V.  Dean  495 

V.  Greene  199 

V.  Greenfield   Life  Associ- 
ation 171 
V.  Howe                                   310 
V.  Kelsey                                  291 
V.  Kendall                                  494 
V.  Lapham                                 404 
r.  Pendergast                   498,  499 
V.  Thorndike  66 
V.  Wells  88 
Browne  v.  Doolittle        5,  6,  72,  197, 
204,  207,  212,  213,  215,  248,  266, 
304,  318,  319,355,  359.  366 
Brownell  i:  Briggs         323,  375,  4.J4 
Brush  v.  Wilkins  67 
Bryant  v.  Allen                               467 


TABLE    OF    CASES    CITED. 
[The  figures  refer  to  the  Pages.] 


XIU 


Bryce,  In  re 

Brydges  v.  King 

Buckley  v.  Buckley 

r.  Frasier  324,  597, 

V.  (Jerard  350, 

Bucknain  v.  Bucknam 
V.  Phelps 

Buffington   v.   Fall    River   Na- 
tional Bank 

Bulkeley  v.  Noble 

Bullard   v.   Attorney-General 

165,  169, 
V.  Bullard 

Burbank  r.  Burbank 

Burke  v.  Burke 

V.  Colbert  -"^l. 

Burns  r.  United  Workmen   171, 

Burnside  r.  Merrick 

Burt  V.  Kicker 

Bush  V.  Clark 

Butnian  v.  Porter 

Buttrick  v.  Tilton 


33 

58 
303 
483 
351 
451 
210 

407 
362 
154, 
436 
362 
450 
308 
324 
174 
403 
186 
180 
409 
325 


Cady  V.  Comey 

Caffrey  v.  Darby 

Calhihan  r.  Woodbridge        514, 

Capen  r.  Duggan 

V.  Skinner  470, 

Carlton  v.  Carlton 
Carpenter  v.  Carpenter 
Carruth  r.  t'arruth  145, 

Carson  v.  Carson 
Cassidy  v.  Shimmin 
Casson  V.  Dade 
Cathaway  ?-.  Bowles 
Catlin  V.  Ware 
Caverly  r.  Eastman 
Cliadbourn  v.  Chadbourn 
Chamberlin  v.  Chamberlin 
Chambers  v.  Queen's  Proctor 
Chandler  v.  Ferris 

V.  R.  R.  Commissioners 

V.  Simmons 
Chapin  r.  Livermore 

V.  Miner 

V.  Waters,  98,  249,  288,  434, 

Chaser.  Fitz  113, 

V.  Kittredge  36,  38,  7 

V.  Lincoln 

V.  Tliompson  232,  366 

V.  Webster 
Chcnery  v.  Webster  197 

Cheney  v.  Davis 
Chesliire     National     Bank     v. 
Jewett 


499 

290 
522 
499 
471 

42 
289 
146 
499 
174 

37 
356 
399 
244 
449 
249 

49 

57 
181 
134 
445 

15 

439, 

442 

,  496 

3,74 

73 

,  367 

179 

,  200 

289 

172 


Child  V.   Boston  &  Fairhaven 

Iron  Works  496 

r.  Coffin  495 

Childs  1-.  Jordan  170 

Chilson  V.  Adams  261 

Choate  v.  Arrington  294,  442 

V.  Jacobs     177,  293,294,  440,  441 

r.  Thorndike  170,  289,  435. 

Christopher  i\  Christoplier  67 

Churcli  V.  Crocker  350 

V.  Savage  197,  287 

Clark  V.  Clark  48 

V.  Clay  281,  301 

V.  Dunnevant  75 

r.  Fisher  58 

V.  Garfield  306 

V.  Holbrook  201,  203 

V.  Lancy  495 

V.  Tainter  240 

V.  Wright  77,  79,  80 

Clarke  r.  Chapin  429 

V.  Cordis  138,  449 

('.  Schwarzenberg  171 

V.  Stanwood  231 

V.  Tufts  239,  242 

Clarkson  v.  De  Peyster  292,  308 

Cleveland  v.  Quilty  12,  465 

Coates  I'.  Cheevcr  402 

Cobb  V.  Kempton 


V.  Muzzey 

r.  Newcomb 

V.  Rice 
Cochran  v.  Thorndike 
Codman  v.  Brooks 

V.  Krell 
Coffin  1-.  Cottle 
Cole  V.  Eaton 
Colegrove  v.  Robinson 
Coleman  v.  Hall 
Coles  r.  Trecothick 
Collamore  v.  Learned 
Collier  V   Simpson 
Collins  I 


160,188,201,202, 

243,  246,  312,  445 

212,  298 


110 

14 

324 

322 

349 

3,  19 

445 

213 

214 

32 

479 

49 


ColUns  98,  155,  108,  169, 

200,  242,  291,  313 

Colt  ('.  Learned  495 

Colwell  V.  Alger  98,  168 

Commonwealth  i'.  Briggs               130 

r.  Fairbanks  48 

V.  Keith  41 

V.  L\  nes  42 

V.  Robinson  42 

r.  Rogers  41 

V.  Wilson  49 

Conant  v.  Kendall  4  45 

r.  Kent  322 

r.  Little  397 

V.  Newton  439 


XIV 


TABLE    OF   CASES   CITED. 


[The  figures  refer 

Conant  v.  Stratton  437,  442 

Coney  t'.  Williams  433 

Conkey  v.  Dickinson  439 

Conklin  v.  Egerton's  Adminis- 
trator 239 
Conly  V.  Conly                                496 
Conner  v.  Shepherd                        413 
Constantinides  v.  Walsh        199,  211, 

324 
Conto  1'.  Silvia  126 

Converse  >:  Converse  45 

V.  Johnson        175,  197,  204,  212 
V.  Wales  350 

Cook  V.  Horton  466 

Ccoke  1-.  Gibbs  497 

Cooper  V.  Robinson  258 

Copeland  v.  Sturtevant  425 

Corcoran  v.  Boston  &  Albany 

R.  R.  Co.  496 

Cote  V.  Lawrence  Manuf.  Co.       494 
Cottle,  Appellant  20 

Coughlen's  Case  54 

Coverdale  v.  Aldrich  240,  287 

Cowden  v.  Jacobsou       340,  353,  476 
Cowdrey  r.  Cowdrey  398,  424 

Coye  I'.  Leach  358 

Cravath  v.  Plympton  495 

Crippen  v.  Dexter  66,  78,  83 

Croade  v.  In  graham  413 

Crocker  v.  Cotting  374,  375 

V.  Shaw  614 

Crosbie  v.  Macdonald  43 

Crosby  v.  Leavitt  104 

Crouch  V.  Eveleth  241 

Crowninshield  v.  Crowninshield     47, 

49 

Cummings  v.  Bird  496 

V.  Bramhall  361,  363 

V.  Cummings  318,  319,  348 

V.  Hodgdon  7,  468 

V.  Thompson  225 

V.  Watson  294 

Curley  v.  Squire  216 

Curry  v.  Spencer  511 

Curtis  V.  Bailev  281 

Cushing  V.  Burrell  209 

V.  Field  212,  234 

Cutter  V.  Hamlen  496 

Cutting  V.  Tower  496 

Cutto  V.  Gilbert  64,  65 

Cutts  V.  Ilaskins  6 

V.  Hodgdon  126 

Daggett  V.  White  155 

Dale  V.  Uanover  National  Bank    177, 

179,  180 


to  the  Pages.] 

Daley  v.  Francis        252,   471,   474, 

475 

Dallinger  v.  Davis  195,  197 

V.  Richardson  5,  7 

Dalton  V.  Savage  320,  324,  330 

Dan  I'.  Brown  62,  80 

Dana  v.  Wentworth  497 

Dane  v.  Dane  Manuf.  Co.  495 

Daniels  ;;.  Pratt  289 

Darley  v.  Darley  58 

D'Arusment  v.  Jones  119 

Davis  V.  Calvert  49,  66 

V.  Cowdin  319 

V.  Davis  58,  79,  499 

V.  Estv  237 

V.  French  296 

V.  Sigourney  63,  79,  80 

Davy  V.  Smith  37 

Dawes  v.  Boylston  104,  105,  353 

V.  Head  237,  440 

V.  Shed  297,  433 

V.  Winship  439 

Dean  v.  Dean's  Heirs  73 

Deane  v.  Caldwell  220 

Dearborn  v.  Preston  377,  463 

Deering  v.  Adams  464 

Defriez  v.  Coffin  356,  436 

Delafield  v.  Parish  47 

Delano  v.  Bruerton  330,  483 

Delay  v.  Vinal  407 

Demerritt  v.  Randall  74 

Demond  v.  Boston  494 

Dempsey  v.  Lawson  65 

Denholm  v.  McKay  185,  267,  318 

Derome  i'.  Vose  5,  7 

Desper  v.   Continental   Water 

Meter  Co.  190 

Dew  V.  Clark  55 

Dewey  v.  Dewey      33,  34,  36,  38,  75 

DeWitt  V.  Harvey  395 

De-xter  v.  Brown  123 

V.  Codman  149,  326,  466 

r.  Cotting  72,  145,  156,  180, 

248,  266,  436 

r. Inches  321 

V.  Shepard  248 

Dickey  v.  Taft  175 

Dickinson,  Appellant  307 

V.  Arms  297 

V.  Barber  48 

V.  Durfee  259 

Dietrick  v.  Dietrick  56,  58 

Dixon  V.  Homer  145,  146 

Dodd  V.  Winship  317,  319.  465 

Dodge  V.  Breed  227 

V.  March  58 

Doe  V.  Caperton  38,  74 

V.  Griffin  368 


TABLE  OF  CASES  CITED. 


XV 


[The  figures  refer  to  the  Pages.] 

Doe  V.  Harris 

58,  62 

Euston  ('.  Seymour 

85 

V.  Lancashire 

67 

Evans'  Appeal 

60 

V.  Manifold 

37 

Evving  I'.  King 

196 

V.  Perks 

62 

Dolierty  v.  O'Caliaghan 

59,  474 

F. 

Donovan  v.  Mi:Carty 

36 

Doole  V.  Doole 

452, 

470,  472 

Fales  V.  Fales 

381 

Dorr  V.  Wainwright 

14G, 

291,  438 

Fall  River  r.  Riley 

432 

Downer,  In  re 

61 

Fall  River  Whaling  Co 

V.  Bor- 

Downing  ''.  Porter 

465 

den 

231 

Downs  V.  Flanders 

452 

Fargo  V.  Miller 

348 

Doyle  V.  Coburn 

422 

Farnum  v.  Bascom 

252 

Drake  v.  Green 

101,  163 

V.  Boutelle 

221 

Draper  v.  Baker 

405 

Farrar  v.  Parker 

467 

Drew  V.  Carroll 

388,  394 

I'arvvell  v.  Steen 

311 

V.  Gordon 

182,  183 

Faxon  v.  Faxon 

376 

Drinkwater  v.  Drinkwater 

240 

Fay  V.  Haven           105 

292, 

353 

433 

Drummond  v.  Parish 

86 

V.  Howe 

307 

Drury  v.  Natick 

156 

V.  Hunt 

434 

Dube'  V.  Beaudry 

134 

V.  Muzzey 

170, 

287 

Dublin  V.  Cliadbourn 

5,29 

V.  Rogers 

441 

Dudley  v.  Warner 

80 

V.  Taylor 

250, 

287 

437 

Dunbar  v.  Tainter 

295 

V.  Valentine 

438 

Duncan  v.  Beard 

74 

V.  Vanderford 

474 

Dunham  v.  Dunham 

433, 

473,  474 

Felch  V.  Hooper 

190 

Dunlap  V.  Watson 

292 

Fellows  V.  Smith 

178 

Durant  v.  Ashmore 

79 

I'etherly  v.  Waggoner 

80 

Durfee  v.  Durfee 

80 

Field  V.  Hanscorab 

390 

Du  Vivier  v.  Hopkins 

226 

V.  Hitchcock 

318 

Dyer  v.  Clark 

403 

Finney  v.  Barnes 
Fisher  v.  Metcalf 

192 
297 

E. 

Fiske  V.  Fiske 

31 

332 

V.  Pratt 

474 

484 

Eastham  v.  Barrett 

375, 

377,  378, 

Fitts  V.  Morse 

363 

379, 

398,  424 

Fletcher  v.  Livingston 

460 

Edds,  Appellant 

481 

Flint  V.  Valpey 

213 

Eddy  V.  Adams 

200,  215 

Flintham's  Appeal 

299 

Edmunds  r.  Rockwell 

253 

Florey's  Executors  r.  Florey 

59 

Edwards  v.  Ela 

299 

Flynn  v.  Flynn        327, 

398 

400 

416 

Ela  V.  Edwards       32, 

33,  34,  39,  249 

V.  Mass.  Benefit  Association 

Eliot  I'.  Eliot 

39 

171 

174 

Eliott  V.  Sparell 

210 

Foot  V.  Dickinson 

416 

Elliot  V.  Elliot 

377,  378 

Forbes  v.  Harrington 

203 

431 

Ellis  V:  Boston,  Hartford,  &  Erie 

V.  McHugh        96, 

168, 

169, 

174, 

11.  R. 

165 

279, 

303 

430 

V.  Page 

252 

Ford  V.  Ford 

61,  62 

Ellsworth  V.  Thayer 

223 

Forster  v.  Forster 

263 

Elms  V.  Elms 

62 

F'orward  v.  Forward 

292, 

295 

297 

Emerson  v.  Paine 

222 

Foss  V.  Hartwell 

128 

V.  Thompson 

297 

Foster's  Appeal 

80 

Emery  v.  Batchelder 

353 

Foster  v.  Bailey 

279 

V.  Bidwell 

499 

V.  Fifield 

182 

287 

V.  Burbank 

89 

!>.  Leland 

425 

V.  Hildreth 

104 

V.  Smith 

324 

330 

Emmons  i\  Shaw 

514 

V.  Starkey 

297 

Essex  V.  Brooks 

9 

507,  522 

r.  Waterman 

484 

Estes  V.  Wilkes 

193 

France  v.  Andrews 

357 

Esty  V.  Clark 

353 

Francis  v.  Daley 

251 

474 

XVI 


TABLK    OF    CASES    CITED. 


[The  figures  refer  to  the  Pages.] 

Franklin  County  Bank 

V.  Green- 

Gray  v.  Sherman 

42 

field  Hank 

216 

Grayson  r.  Atkinson 

32 

Freeland  v.  Freeland 

409 

tureen  v.  Gaskill 

9 

158 

French  '•.  llayvvard 

22(; 

V.  Hogan          152, 

158, 

inn, 

299, 

Frotliingliiim  r.  Shaw 

515 

467, 

505 

Fuller  i:  Connelly 

205, 

212,  214, 

V.  Russell 

228 

215,  289 

432, 

486,  498 

Greene  v.  Borland 

146 

?•.  Rust 

39o,  427 

);.  Brown 

9 

r.  Wilbur 

168 

Cireenleaf  v.  Allen 
Greenough  r.  Turner 

v.  \Velles 

212, 

234 
428 

239 

G. 

Greenwood's  Case 

55 

Greenwood  r.  McGilvray 

227, 

234, 

Gale  V.  Nickerson 

5,30 

,  77,  174, 

301 

200,  317 

472, 

473,  474 

Gregg  V.  Gregg 

281 

Gannon  v.  RufRn 

206,  207 

Gregson  ;;.  Tuson  246, 

251, 

253, 

258, 

Ciarneit  v.  Garnett 

49,  136 

259 

Garvey  v.  fiarvey 

160 

Greves  v.  Shaw 

520 

Gaskill  V.  Green 

158 

Grinnell  v.  Baxter 

197 

298 

Gates  V.  White 

196,  505 

Griswold  v.  Chandler 

299 

Gay  V.  :Minot 

19 

Grow  I'.  Dobbins 

196 

George  r.  George 

36 

Guckian  v.  Riley 

397 

427 

Gerard  v.  Buckley 

376 

Guptill  V.  Ayer 

216 

234 

600 

Gerrish  v.  Nason 

35,47 

Gurney  v.  Waldron 

128 

Gibbs  V.  Taylor 

498 

Gibson,  Appellant 

132,  481 

V.  Farley 

298 

H. 

V.  Gibson 

53 

Giles  V.  Giles 

62 

Haddock  v.  Boston  &  Maine  R. 

Gilniore  v.  Hubbard 

229 

R.  Co. 

29 

Glines  v.  Weeks 

204 

215,  218 

Hagar  v.  Wiswall 

386 

Gloucester  r.  Page 

127 

Hagertv  v.  State 

511 

Glover  V.  Ilayden 

58 

Uale  V.  Hale            178 

179 

181 

471 

Goddard  v   Whitney 

323,  324 

V.  Leatherbee 

222 

Goff  V.  Kellogg 

223 

V.  Munn 

398 

Goldthwait  c.  Day 

221,  234 

Hall  V.  Gushing 

495 

Gouibault  V.  Public  Administra- 

V. Hall 

33 

387 

390 

tor 

54 

V.  Thayer 

20 

Goodell  V.  Goodell 

257 

Hallowell's  Estate 

252 

Goods  of  Arthur  White 

84,87 

Hamilton  v.  Hamilton 

49 

Clarkes 

33 

Hammond    v.    Granger      146, 

196, 

Frith 

38 

201 

Lay 

86 

Hancock  v.  Hubbard 

356 

440 

Main 

118,  358 

Handy  v.  State 

76 

Goodwin  v.  Jones 

174 

Hannum  v.  Day 

244 

246 

Goodyear  Dental  Vulcanite  Co. 

Haraden  v  Lai-rabee 

210 

341 

V.  Bacon 

433 

Harding  r.  Larned 

266 

306 

Gordon  v.  Pearson 

370 

V.  Littlehale 

170 

Gould  V.  Camp 

197 

r.  Smith 

220 

V.  Lawrence 

181,  454 

V.  Weld                 7 

0,71 

126 

135 

V.  Mansfield 

88 

Hardy  r.  Call 

301 

i>.  Mather 

240 

Harmon  v.  Osgood 

497 

499 

V.  Safford 

86 

Harrington  v.  Brown 

104 

257 

Granger  i:.  Bassett 

210 

304,  318 

V.  Conolly 

417 

Graves  i'.  Goldthwait 

393 

r.  Harrington 

248 

Gray  v.  Gray 

476 

Harris  v.  Berrall 

61 

V.  Parke          130, 

159, 

160,  162. 

V.  Harris 

244 

476 

167,  472 

V.  Starkey 

5,  12,  29 

476 

TABLE    OF   CASES    CITED. 


XVU 


[Tl 

e  figures  refer  to  the  Pages.] 

Harrison's  Appeal 

59 

Hooper  v.  Shaw 

514 

Hartwell  r.  Rice 

3G2 

3G3 

Horton  v.  Earle 

353 

Harvard  College  v.  Aniory 

307 

Hosea  v.  JacoV>s 

43 

V.  Gore 

71 

Houghton  V.  Butler 

496 

Harwood  r.  Goodriglit 

66 

Hovey  v.  Dary 

261 

Hastings  v.  Dickinson 

409 

Howard's  Will 

76 

V.  Mace 

410 

Howard  r.  Candish 

414 

V.  Rider 

45,  48 

V.  Priest 

403 

Hathorn  v.  King 

45,48 

Howe  V.  Berry 

324 

Haven  v.  Foster 

43 

181 

V.    Howe       507,   515, 

517,  522, 

Havens  v.  Vandenburg 

67 

523 

Haverliill  Loan  and  Fund  As- 

r. Lawrence 

231 

sociation  V.  Cronin 

220 

221 

V.  Peabody 

432 

Hawes  v.  Humphrey 

69 

V.  Watson 

89 

Hay  den  v.  Barrett 

341 

Howes  I'.  Colburn 

55,  73 

Hays,  In  re 

85 

Hubbard  v.  Hubbard 

84,86 

V.  Jackson 

252 

r.  Lloyd 

291 

Hay  ward  v.  Ellis 

310 

Hudson  V.  Hulbert 

193,  253 

Healy  v.  Reed                     9, 

158 

207 

I'.  Lynn    &    Boston 

Rail- 

V.  Root 

212 

road 

495 

Heard  v.  Drake 

213 

Humes  v.  Wood 

251 

V.  Lodge 

432 

Humphrey,  Appellant 

481 

r.  Trull 

466 

Hunnewell  v.  Taylor 

375 

Heath  t-.  Wells 

253 

Hunt,  Appellant 

307 

Hemenway  v.  Hemenway 

210 

V.  Frost 

257 

Henry's  Case 

405 

V.  Ilapgood 

387 

Henry  v.  Estey 

404 

V.  Whitney 

234 

Hevves  v.  Delion 

252 

Hurley  v.  O'SuUivan 

350,  381 

Hicks  V.  Chapman 

138 

Hussey  v.  Coffin 

100 

Higbee  v.  Bacon 

314 

Hutchins  v.  State  Bank 

30 

Higgins  V.  Central  New  E 

ng- 

land  &  Western  R.  R.  Co 

495 

Hildreth  v.  Jones 

404 

I. 

V.  Marshall 

213 

Hill  V.  Bacon 

88 

Id  ley  V.  Bo  wen 

61,79 

V,  Boston 

144 

Ingersol  v.  Hopkins 

68,  350 

V.  Davis 

92 

Inheritance  Tax,  Re 

511 

V.  Pike 

397 

Ipswich  Manufacturing  Co.  v. 

Hitchcock  V.  Shaw 

40 

Story 

294,  295 

Hix  i\  Wittemore 

54 

Irish  V.  Smith 

49 

Hoar  V.  Marshall 

499 

Ives  V.  Ashley 

257 

Hodgdon  v.  Cummings 

476 

Hogan  V.  Grosvenor              33,  34,  38 

Holbrook  v.  Waters 

499 

J. 

Holden  i'.  Fletcher 

195 

HoUenpeck  v.  McDonald 

245 

Jackson  v.  Betts 

80 

V.  Pixley 

179 

180 

V.  Christman 

76 

Holmes  v.  Beal 

248 

V.  Kniffen 

58 

V.  Moore 

496 

V.  Le  Grange 

73 

V.  Taber 

210 

V.  Luquere 

73 

V.  Winchester          404, 

422 

425 

V.  Van  Deusen 

38,74 

Holyoke  v.  Ilaskins 

3,10 

Jacobs  V.  Jacobs 

226 

Hooker  v.  Bancroft 

174 

Jaques  v.  Swasey 

208,  363 

v.  Olmstead             105, 

221, 

237, 

Jauncey  v.  Thorne 

70 

291, 

353 

438 

Jenkins  v.  Dawes 

40 

Hooper,  Petitioner 

187 

V.  Stetson 

88 

i".  Bradbury 

144 

V.   Wood        98,   168, 

196,  242, 

V.  Bradford 

515 

522 

498 

XVlll 


TABLE   OF   CASES    CITED. 


[The  figures  refer 
6,  3H7 


Jenks  V.  IlowlunJ 

Jenner  r.  Ffinch  37 

Jeiiney  o.  Wilcox  196 

Jennings  ;-.  Pendergas  46 

Jennison  v.  Hapgood     184,  257,  287, 

290,  291,  292,  295,   299,  300,  301, 

315 

Jewett  V.  Jewett  260 

V.  Phillips  231 

V.  Turner  100 

Jochumsen  v.  Suffolk  Savings 

Bank  6,  119 

Johnson's  Will  79,  80 

Johnson  v.  Ames  171,  234,  288 

V.  Baker  299 

V.  Home  for  Aged  Women    252 

V.  Moore's  Heirs  55 

V.  Waterhouse  126 

v.  Williams  31,  326 

Jones,  Appellant  466 

v.    Ate-hinson,   Topeka    & 


Santa  Fe' 

R.  R.  Co. 

146, 

188 

V. 

Brewer 

398 

V. 

Murphy 

63 

V. 

Richardson 

98, 

215 

363 

V. 

Simpson 

66 

V. 

Treadwell 

208, 

360 

Judkins  v.  Judkins 

374 

Julian 

V.    Boston, 

Clinton 

& 

Fitchburg  R.  R.  Co.  409 


K. 

Kaffenburg  v.  Assnef  470 

Kavanaugh  v.  Kavanaugh     187,  452 

Kearns  v.  Cuniff  415 

Keith  V.  Copeland  209 

Kendall  v.  Gleason  349 

Keniston  v.  Mayhew  349 

Kennebel  v.  Scrafton  68 

Kenney's  Case  466 

Kenney  i\  Tucker  361 

Kent  V.  Barker  351 

V.  Bothwell  174 

V.  Dunham  209,  210,  471 

V.  Morrison  273,  408 

Kimball  r.  Perkins  306 

V.  Story  353 

V.  Sumner  298 

V.  Til  ton  88 

Kinff  "•  King  404 

Kingman  r.  Soiile  296 

Kingsbury  v.  Wiimarth  180 

Kinliside  v.  Harrison  76 

Kiuue  V.  Kinne  45 


to  the  Pages.] 

Knapp  V.  Windsor  348 

Knight  V.  Cunningham  196 

Knowlton  v.  Johnson  356 

V.  Moore  508,  509 

Kochersperger  v.  Drake  511 


Ladd's  Will  60 

Ladd  V.  Chase  352 

Lamb  v.  Lamb  292 

Lamson  i\  Knowles  8,  9,  355 

V.  Schutt  242,  253 

Landon  v.  Howard  76 

Langdon  v.  Palmer  392 

Lane  v.  Moore  59,  67 

Larkins  v.  Larkins  66 

Lamed  v.  Bridge  239 

Larrabee  v.  Tucker  322,  330 

Laughton  v.  Atkins  64,  66 

Lavery  v.  Egan  323,  325 

Lawless  v.  Reagan  138,  464,  465 

Lazell  V.  Lazell  422 

Leathers  v.  Greenacre  84,  83 

Leavitt  v.  Lamprey  399 

r.  Leavitt  175 

Le  Breton  v.  Fletcher  76 

Lee,  Appellant  251 

V.  Gay  352 

V.  Miller  423 

V.  Wells  20 

Leggate  v.  Moulton  496 

Leland  v.  Felton  170,  294 

Lemage  r.  Goodban  65 

Lenz  V.  Prescott  356 

Leonard  v.  Ha  worth  349 

V.  Leonard  413 

Lewis  V.  Bolitho  464 

V.  Lewis  60 

V.  Mason  48 

Lincoln  r.  Perry  323,  32-5,  355 

Lisk  y.  Lisk  177,  179 

Litchfield  v.  Cudworth  182,  257 

Little  V.  Chadwick  171,  288,  293 

V.  Conant  496 

V.  Gibson  41 

V.  Little  54 

Livermore  v.  Bern  is        308,  467,  471 

V.  Haven  241 

Livingston  v.  New  kirk  252 

Lobdell  r.  Hayes  293 

Loker  v.  Gerald  400 

Lombard  r.  Morse  128,  308 

Long  V.  Short  252 

Longford  v.  Eyre  36 

Look  V.  Luce  198,  497 


TABLE    OF   CASES    CITED. 
[The  figures  refer  to  the  Pages.] 


Loring  v.  Alline 
V.  Bacon 
I'.  Cunningham 
V.  Kendall 
V.  Marsh 


446 
431 

170,288 

437,  438,  439 

350 


Mass.  Horticultural  So 
ciety 


V.  Park 

V.  Steineman 
Lovell  V.  Minot 
Low  V.  Bartlett 
Lowd  V.  Brigham 
Lowell,  Appellant 
Lucas  i\  Morse 
Luchterhand  v.  Sears 
Lund  V.  Woods 
Lusconib  V.  Ballard 
Lyman  v.  Coolidge 
L3nch  V.  Dodge 
Lynes  v.  Hayden 


30 

40 

354,  356,  358 
307 
105 
377 
156 

15 
449 
403 
296 

42 
143 
448 


M. 

Macknet's  Executors  v.  Mack- 
net  299 
Magoun  v.  Illinois  Trust  &  Sav- 
ings Bank  510,  511 
Mansfield  v.  Pembroke  415 
Manson  i'.  Felton  297 
Marden  v.  Boston  119,  357 
Marks  r.  Sewall  394 
Marsh  v.  French  380 

t'.  McKenzie  182 

Marshall  v.  Masou  36 

Marston  v.  Roe  67,  68 

Martin  r.  Clapp  176 

V.  Gage  4G6 

Marvel  i\  Babbitt  239 

V.  Phillips  496 

Mason  r.  Mason  400,  416 
Mass.     General    Hospital    v. 

Araory  146 

Mathews  v.  Mathews  324,  408 

Mattoon  v.  Cowing  307,  445 

May  V.  Bradlee  48,  59 

V.  May  310,  311 

V.  Skinner     187,  300,  302,  312, 

476 

Mavnard  v.  Tyler  57 

McCabe  i-.  Bellows  405 

V.  Fowler  289 

McCann  v.  Randall  190 

McConnell  v.  Wildes  80 

McDonald  v.  Morton  138 

McFeely  v.  Scott  7 

McGooch  V.  McGooch  112 


McGreevy  v.  McGrath 
Mclntire  v.  Linehan 
McKay  v.  Kean 
McKiin  V.  Aulbach 

V.  Bartlett 

V.  Blake 

V.  Demnion 

V.  Doane 

V.  Glover 

V.   Haley 


231 
307,  442 

5,  144,  203 

1G8,   205,   433, 


184,  307 
141,  169 
307,  445 
281,  310 

304, 
Bank  v. 

354 


422, 


V.  Harwood 

V.  Hibbard 

V.  Mann 

V.  Morse 
McLane  v.  Curran 
McMahon  v.  Gray 
Mechanic's    Savings 

Waite 
Melanefy  i\  Morrison 
Melia  i:  Simmons 
Me  nee  v.  Mence 
Mendell  v.  Dunbar 
Mercier  i\  Cliace 
Merriam  r.  Leonard 
Merrill  v.  Beckwitli 

I'.  Emery 

V.  New   England  Insurance 
Co. 

V.  Preston 
Middlesex  Bank  i\  Minot 
Middleton  i-.  Middleton 
Miles  V.  Boyden 
Miller  v.  Congdon  146,  210, 

V.  County  Commissioners 

i".  Goodwin 

V.  Miller 

V.  Smith 
Minot,  Petitioner 

V.  Harris 

V.  Norcross 

V.  Winthrop 
Monk  V.  Capen 
Moody  V.  Shaw 
Mooers  v.  White 
Moore  v.  Boston  28i 

V.  Weaver 
Moran  v.  Hollings 
Morey  v.  American   Loan  and 

Trust  Co. 
Moritz  V.  Brough 
Morrill  v.  Morrill 

V.  Wiseman 
Morrissey  v.  Mulhern 
Morse  v.  Hill 

V.  Mason 

V.  Natick 
Morton  v.  Hall 


57, 


220, 
512,513,517, 


XIX 

94 

428 
474 
429 
432 
435 
431 
440 
433 
436, 
498 
433 
445 
446 
446 
445 
398 

499 

47 

119 

66 

37 

424 

226 

190 

408 

104 
320 
221 

61 

43 
291 
375 
449 
453 

48 
3.50 
349 
435 
522 
424 
520 

44 
494 
353 
496 

197 
59 
390 
15 
211 
188 
353 
605 
197 


XX 


TABLE   OF   CASES    CITED. 
[The  figures  refer  to  the  Pages.] 


Moses  i".  Julian  20 

Mount  Hope  Iron  Co.  v.  Dear- 
den  386,  390 
MuUiall  V.  Fallon  495 
Mulliern  v.  McDavitt  309 
Mulligan  v.  Newton  172 
Munroe  v.  Holmes                  253,  297 
V.  Luke                                    393 
Murphy  v.  Boston   &   Albany 
R.  R.  Co. 
V.  Walker 
Murray   v.   Wood      141,    169, 


Myer  v.  Tighe 


496 
311 
221, 
446 
138 


N. 

Kashua  Savings  Bank  r.  Ab- 
bott 198 
Nathan  v.  Nathan                            178 
National  Bank  of  Troy  v.  Stan- 


ton 

Needham  v.  Ide 
Nelson  v.  McGiffert 

V.  Woodbury 
Nettieton  v.  Uinehart 
New    England  Hospital  v. 

hier 
New    England    Trust    Co. 

Eaton 
Newburyport  v.  Creedon 
Newcomb  v.  Goss 

V.  Stebbins 

V.  Williams 

V.  Wing 
Newell  I'.  Homer 

V.  Peaslee 


203 

47,48 

64 

223 

496 

So- 

254 


V.  West 


Newhall  v.  Sadler 
Newton  v.  Cook 
I'.    Seaman's 
eiety 
Nicholes  v.  Binns 
Nichols,  Appellant 
Nickerson    v.    Buck 


316,  465 
199 
214, 432 
293 
160,  437,  444 
440 
63,80 
197,  201,  214,  319, 
353,  359 
12,  179,  216.  223,  224, 
303,  318,  434,  476 


3yi 
405 
Friend    So- 

32,77 

54 

188 

32,    33, 


15, 


V.  Chase 

V.  Thatcher 
Northampton  v.  Smith 
Norton  v.  Norton 

V.  Sewall 
Nott  V.  Sampson  Manufacturing 

Co.  259,  460 

Noyes  v.  Stone  328,  402 

Nugent  V.  Cloon  146 


73,  74 

499 

415 

19,  464 

244,  251 

113,  495 


Nussear  v.  Arnold  58 

Nutt  V.  Norton  67,  68 

Nye  V.  Taunton   Branch  R.  R. 

Co.  398 


O. 

O'Brien  i'.  Bailey 

V.  Mahoney 
O'Dee  V.  Mc  Crate 
Odiorne  v.  Maxcy 
O'Donnell  v.  Smith 
O'Gara  v.  Neylon 
Ogilen  V.  Greenleaf 

V.  Pattee 
Onions  v.  Tyrer 
O'Reiiey  v.  Bevington 
O'Rourke  v.  Beard 
Osborn  v.  Cook 
Osgood  V.  Bliss 

V.  Breed 

V.  Foster 

V.  Osgood 
Ostrom  V.  Curtis 
Overton  v.  Overton 


376 

374,  376,  379 

176 

434 

134,  135 

332,  410 

59 

209 

61 

257 

352 

34 

68 

15,  360 

170 

452,  453 

217,  235 

49 


Paine  v.  Fox 

V.  Gill 

V.  HoUister  178,  356 

V.  Moffitt 

V.  Prentiss 

V.  Stone 

V.  Ulmer 
Palmer  v.  Mitchell 

V.  Palmer      166,  250,  253, 


Parcher  r.  Bussell 
Parker  r.  Converse 

V.  Kiickens 

V.  Parker 

V.  Sears 

V.  Simpson 

V.  Townsend      National 
Bank 
Parkman  v.  McCarthy 


313, 


5,  29,  399,  415, 
474 


254 
434 
409 
440 
353 
434 
494 
290 
294, 
311 
315 
145 
369 
406 
144 
495 


Parks  V.  Reilly 
Parsons  v.  Mills 

V.  Spaulding 
Pattee  v.  Stetson 
Patten  v.  Poulton 
Paul  V.  Costello 

V.  Paul 

V.  Stone 


321, 
330. 


230 
324, 

41 
424 
223 
106 
466 

79 

470 

339,  423,425 

195 


Peabody  r.  Norfolk 
Pease  v.  Allis 
Peaslee  v.  Peaslee 
Peck  V.  Metcalf 
Peebles  v.  Case 
Peiulleton  v.  I'omeroy 
Penballow  v.  Dvviglit 
Penniman  v.  Frencli 
Perkins  v.  Fellows 


TABLE    OF   CASKS    CITED. 
[The  figures  refer  to  the  Pages.  ] 


170 

40 

409 

390 

76 

308 

172 

4(J4 

227. 

497 

1(52 

41 

463 

360 

178,  182,471 


206,  221, 
301, 
130 


5,6, 


V.  Finnegan 
V.  Stevens 
Peters  u.  Peters 

V.  Siders 

Pettee  v.  Wilniarth 

Pettes  V.  Brigliam 

Phelps  V.  Palmer  375 

V.  Phelps  407 

Phillips  V.  Allen  402 

V.  Frye  295 

Pickens  v.  Davis  67 

Picquet,  Appellant  104,  430 

Pierce  v.  Gould  465,  466 

V.  Keene  470 

V.   Prescott       5,    12,  311,   354, 

437 

V.  Saxton  227 

Pinkerton  v.  Sargent  332 

Pinney  v.  McGregory  104,  107 

Place  V.  Washburn  453 

Plimpton  V.  Fuller  252 

Plummer  v.  Coler  510 

Pollock  V.  Learned  31,  209,  832 

Pond  V.  Pond  391 

Poole  V.  Munday  290,  314 

r.  Richardson  48 

Pope  V.  Farnsworth  152 

Potter  V.  Baldwin  59 

V.  Hazard  377,  392 

V.  Wiieeler  400 

Powers  V.  Codwise  40 

Powow  River  National   Bank 

V.  Abbott  196 

Pratt  V.  Atvvood  341 

V.  Bates  150 

V.  Felton  407 

V.  Lamson  201 

V.  Rice  43 

Prentice  v.  Dehon  196 

Prentiss  ;;.  Prentiss  350 

Prescott  V.  Durfee  104 

V.  Parker  437 

V.  Pitts-  439 

V.  Read  305,  440 

Prior  V.  Talbot  291,  438 

Pritchard  v.  Norwood  123 

Procter  ;;.  Newhall  393 

Proctor  V.  Clark  182,  320,  427 


Provis  V.  Reed 
Pryor  v.  Coggin 
Putnam  v.  Story 
Putney  v.  Fletcher 

216,  221,  224, 
Pynchon  v.  Lester 


Quick  V.  Quick 


Q. 


R. 


Ramsdill  v.  Wentworth 
Ramsey  v.  Humphrey 
Rathbun  v.  Colton 
Raymond  v.  Wagner 
Raynhara  ;;.  Wilmarth 
Read  v.  Hatch 
Reed's  Will 
Reed  v.  Dickerman 
Reid  V.  Borland 
Reynolds  v.  Reynolds 
Rice  V.  Bradford 

V.  Freeland 

V.  Park  man 

V.  Smith 
Rich  V.  Gilkey 

V.  Lord 

V.  Tuckerman 
Richards  v.  Child 

V.  Dutch 

V.  Nightingale 

V.  Richards 

V.  Swectland 
Richardson  v.  Bly 

V.  Bojnton 

V.  Hazleton 

V.  Oakman 
Richmond's  Appeal 
Richmond,  Petitioner 

V.  Adams  National 

V.  Gray 
Ricketson  v.  Merrill 
Riggs  V.  Riggs 
Right  ';.  Price 
Ripley  u.  Collins 

V.  Sampson        197, 
Robbins  v.  Bates 

V.  Haywood 
Robinson  v.  Bates 

v.  Durfee 

V.  Hodge 

i\  Hutchinson 

V.  Millard 


XXI 


58 

62 

240 

160,  163,  171, 

239,  465,  466 

403 


80 


350,  351 

388 

305 

36,37 

399 

496 

46 

407 

66 

37 

514 

375 

263 

393 

61 

375 

195 

196 

105 

213 

384,  392,  496 

160,  163,  171 

46 

306 

12,  182,  434 

441 

57 

253,  298,  304 

Bank       128, 

446 

266 

146,  291,  438 

36,  37 

36 

475 

295,  297,  405 

257 

293,  :;''7 

401 

470,  471 

433 

49 

441,  446 


xxn 


TABLE    OF   CASES    CITED. 


[The  figures  refer 

Robinson  v.  Ring  290 

V.  Kobiiison  195,  218 

V.  Simmons  324,  330,  405 

Roger  Williams  National  Bank 

V.  Hall  231 

Root  I'.  Blake  448 

V.  Yeomans  305 

Ross  V.  Ross  320,  484 

Rotcli  V.  Morgan  295 

Russell  V.  Iloiir  114 

V.  Russell  413 

Ryan   v.   North    End  Savings 

Bank  308 


Sanford  v.  Marsh  341 

Sargeant  v.  Fuller  404,  405 

Sargent  v.  Sargent  209,  210 

V.  Sargent  (168  Mass.  420) 

8,  9,  446 

Savage  v.  Winchester  220,  221 

Schiffelin  r.  Stewart       292,  293,  308 

Scholey  v.  Rew  509 

Schouler,  Petitioner  145 

Schultz  V.  Pulver  290 

Scott  V.  Hancock  240,  415 

v.  Rand  1G3 

v.  Scott  61 

Scrubly  v.  Fordham  61 

Searle  v.  Chapman  405 

Sears  v.  Putnam  353 

V.  Sears  375 

V.  Wills  2:^6 

Selectmen  of  Boston  v.  Boyls- 

ton  176 

Sever  v.  Russell  315 

V  Sever  391 

Sewall  V.  Raymond  251 

V.  Robbins  47,  66 

V.  Roberts  482 

V.  Wilmer  351 

Shailer  v.  Bumstead  55,  58 

Shannon  v.  Shannon  100 

V.  White  31 

Shattuck  V.  Gragg  397 

Shaw  i\  Paine  154 

Sheafe  v.  O'Neil  399 

Sherman  v.  Brewer  175 

Shillaber  v.  Wyman  498 

Shores  v.  Hooper  5,  29,  355,  359 

Short  I'.  Smith  66 

Shumway  v.  Holbrook  30 

Shnrtleff  v.  Rile  306 

Sigourney  v.  Sibley  20,  376 

i:  Wetherell  175,  295,  314 

Silloway  v.  Brown  422,  423 


to  the  Pages.] 

Silverman  v.  Silverman  452 

Simmons  v.  Almy  128 

Simonds  v.  Simonds  88 

Slack  V.  Slack  178,  475 

Slattery  v.  Doyle  297 

Slocomb  0.  Slocomb  78,  87 

Sly  V.  Hunt  5 

Small's  Estate  512 

Smith,  Petitioner  321 

V.  Bradstreet  467 

V.  Dutton  818 

i;.  Fenner  69 

V.  Haynes  467 

V.  Jewett  288 

V.  Philbrick  281 

V.  Rice  5,  6 

V.  Shaw  398 

V.  Sherman  113,  466,  496 

V.  Smith  48,  400,  453 

V.  Smith   (175   Mass.  483) 

123.  199,  473 

V.  Wait  61 

V.  Wells  253 

Snow  V.  Snow  822 

Sowle  V.  Sowle  261 

Sparhawk  v.  Russell  220 

V.  Sparhawk  40,  163 

Spaulding  v.  Wakefield  288 

Spelman  v.  Talbot  196,  226 

Spooner  v.  Lovejoy  88 

V.  Spooner  197,  2S9 

Sprague  v.  West  240 

Spring  V.  Woodworth  138 

Staigg   V.    Atkinson    149,  320,  326, 

407 

Stanwood  v.  Owen  219 

State  V.  Alston  612 

V.  Ferris  611,  512 

V.  Hamlin  511 

V.  Price  79 

V.  Sawtelle  42 

Stearns  v.  Brown  292 

V.  Fiske  111,  112 

r.  Stearns  293,  360,  375 

Stebbins  v.  Lathrop  92,  117 

V.  Palmer  113,  465,  496 

V.  Smith  438 

Steele  i;.  Price  61 

Stevens  v.  Cole  439,  440 

V.  Gage  289 

V.  Gaylord         105,  294,  295,  353 

V.  Palmer  354 

V.  Van  Cleve  83,  45 

Stewart  v.  Lispenard  45 

V.  Stewart  34 

Stickney  v.  Hammond  64.  66 

Stills  V.  Harmon  499 

Stockbridge,  Petitioner         206,  362 


TABLE    OF   CASES    CITED. 


Stone  V.  Damon 

V.  Littlefield 
Stougliton  V.  Leigh 
Stowe  V.  Bowen 
Strode  v.  Commonwealth 
Strong  V.  Moe 
Studlcy  V.  Josselyn 

V.  Willis 
Sugden  v.  St.  Leonards 
Sailings  V.  Richmond 

V.  SuUings 
Sullivan  v.  Sullivan 
Sumner  v.  Crane 

V.  Parker 

V.  Williams 
Sntton  ('.  Sutton 
Sutton  Parish  v.  Cole 
Swan  V.  Hammond 

V.  Picquet 
Swasey  v.  Jaques 


[The  figures  refer 
49 


2G7. 


Sweeney  v.  Muldoon 
Swett  V.  Boardman 

V.  Bussey 
Swift,  In  re 
Sykes  t'.  Meacham 
Symmes  v.  Drew 


306 
402 
146 
512 

?m 

250 

20o 

68,  80 

o56,  400 

409 

40 

59,  76,  77 

387 

261,  296 

66 

144 

67,68 

465 

9,  158,  348,  349, 

463,  467 

211 

35 

375 

511 

196 

414 


Taft  V.  Stevens 

396 

V.  Stow 

198 

Ta inter  v.  Clark 

239 

Talbot  V.  Chamberlain 

7e 

\  83,  372 

Tallman  v.  Tallman 

449 

Tallon  V.  Tallon 

96, 

200,  207 

Tarbell  v.  Forbes 

80,  81 

V.  Jewett 

294,  295 

I'.  Parker          218, 

240, 

25.3,  259 

V.  Tarbell 

350,  409 

Taylor  v.  Blake 

375 

V.  Lewis 

207 

V.  Lovering 

128 

V.  Taylor 

207,  304 

Tenney  v.  Poor 

244, 

240,  251 

Terry  v.  Foster 

350 

Thacher  v.  Dunham 

301 

Thayer  v.  Boston 

71 

V.  Finnegan 

433 

V.  Homer 

IGO 

V.  Keyes 

440 

V.  Thayer 

379, 

386,  391 

V.  Winchester        6,  98, 

239,  242 

Thomas  v.  Le  Baron 

254,  201 

Thompson,  Ex  parte 

85,86 

V.  Brown 

307 

V.  McGaw 

416 

■  to  the  Pages.] 
Thompson  v.  Thompson 
Thorndike  v.   Hinckley 


Thurston  v.  Maddocks 
Tilden  v.  Tildeii 
Tirrel  v.  Kenney 
Todd  V.  Bradford 

I'.  Sawyer 
Tooniey  v.  McLean 
Towle  V.  Bannister 

V.  Lovet 

V.  Swasey 
Townsend  v.  Townsend 
Trecothick  v.  Austin 
Trimlestown  v.  D'Alton 
Trimmer  v.  Jackson 
Tripp  V.  Gifford 
Tucker  v.  Fisk 

V.  Utley 
Tully  V.  TuUy 


XXlll 

55 

141,  221, 

281 

422 

33,44 

404,  423 

220 

88 

404 

216 

494 


326,  332 

171,  288 

59 

35 

318 

5,  465,  467,  484 

495 

454 

TurnbuU  v.  Pomeroy  311 

Tuttle  V.  Robinson  289 

Tyler  v.  Boyce  199 

I'.  Court  of  Registration  99 

V.  Odd  Fellows'  Association  128 


u. 

United  States  v.  Perkins  510 

Uphara  V.  Draper  308 

Urann  v.  Coates  311 

Utica  Insurance  Co.  v.  Lynch  293 


Van  Alst  v.  Hunter  46 
Vantine  v.  Morse  499 
Vaughan  v.  Street  Commis- 
sioners 120 
Veazie  r.  Marrett  200 
Verdier  v.  Verdier  75 
Verry  v.  McClellan  251 
Very  v.  Clarke  231 
Vincent  v.  Spooner  409 


W. 

Wade  V.  Lobdell  281,  314 

Wain  Wright  ;•.  Tuckerman  44 

Wales  V.  Coffin  423 

r.  Willard  2,  6 

Walker  v.  Fuller    244,  248,  251,  252 

254,  259,  476 

V.  Hill  213 


XXIV 


TABLE   OF   CASES    CITED. 
[The  figures  refer  to  the  Pages.] 


Walker   v.   Lyman's   Adniinis-             | 

White  V.  Ditson      156, 

292, 435, 439, 

trators 

216 

445 

V.  Walker 

268,  398 

V.  Duggan 

435 

Wall   V.   Troviilent  Institution              | 

V.  New      Bedford 

Waste 

for  Savings 

169 

Corporation 

134 

Wallis  V.  Banhvell 

143 

V.  Ripton 

86 

r.  Wallis 

64,80 

V.  Stanfieid 

210,  349 

Walsh  V.  Wilson 

403,  407 

V.  Stanwood 

434 

Walters  v.  Nettleton 

496 

V.  Story 

414 

Walthain  Bank  v.  Wright 

196,  297 

V.  Swain 

230,  235,  305 

Wamesit  Power  Co.  r.  Sterl 

ng 

V.  Weatherbee 

433,  437 

Mills 

895 

V.  Willis 

401 

Ward  V.  Fuller 

88 

V.  Wilson 

55,  160 

V.  Gardner 

379 

Whithcd  V.  Mallory 

401 

V.  \Yard 

182 

Wliitney  v.  Closson 

320 

Warden  v.  IJichards 

240 

V.  Twombly 

45 

Wardweil  r.  Wardwell 

131 

Wiggin  V  Swett      302 

,  317,  444,  466 

Ware   r.   Merchants'    National 

Wilbor  V.  Dyer 

390 

Bank 

409 

Wilbur  V.  Hickey 

241 

V.  Ware 

49 

Wilby  V.  Phinney 

220 

Warner  v.  Beach                   67,  69,  70 

Wilcox  V.  Wilcox 

16,  244,  403 

V.  Warner's  Estate 

60 

Wild  V.  Brewer 

350 

Warren  v.  Para  Rubber  Shoe 

Wilder  v.  Goss 

350 

Co. 

495 

V.  Tl  layer 

349,  353 

Washburn  v.  Ilale 

803 

Wildbridge  v.  Patterson                 160 

V.  Wasliburn 

180 

Wilkes  V.  Rogers 

309 

V.  Wliite 

482 

Wilkins  V.  Wainwright          205,  495 

Waterman  v.  Hawkins 

350 

Willard  v.  Briggs 

454 

Waters  v.  Stickney              12,  15,  77 

V.  Lavender        15 

,  300,  436,  445 

Watson  V.  King 

357 

V.  Willard 

377 

V.  Watson 

379,  397 

Willoutt  V  Calnan 

88 

Watts  V.  Howard 

302 

Willett  V.  Blanford 

290 

Webster  v.  Hale 

209 

Willey  V.  Tiionipson 

304 

V.  Vnndeventer 

164 

Williams  r.  American 

Bank         222 

V.  Webster 

69 

V.  Robinson 

47 

Webster  Bank  v.  Eldredge 

154 

r.  Spencer 

47 

Welch  r.  Adams     105,  158, 

209,  210, 

r.  VVilliams 

67,  178 

238,  340 

353,  359 

Wilmarth  v.  Bridges 

397 

Weller  i'.  Weller             398 

414,  424 

Wilmerding,  Re 

510 

Wellington  ?-.  Apthorp 

88 

Willwerth  v.  Leonard 

165 

Wellman  v.  Lawrence 

254 

Wilson  V.  Fosket 

350 

Wells  V.  Child                   99 

196,  437 

V.  Leishman 

176 

Welsh  V.  Welsli 

170,238 

V.  Wilson 

160,  163 

V.  Woodt)ury            320 

324,  330 

V.  Wilson-Martin 

Fire  Alarm 

Wemyss  v.  White 

145 

Co. 

180 

Wendell  v.  French 

300,  301 

Wilton  V.  Humphreys 

77 

Wentwortli  v.  Wentworth 

178 

Winchelsea  v.  Wanch 

ape                38 

Weston  c.  Foster 

375 

Winchester  v.  Forster 

88 

Wiiall  i\  Converse 

348 

V.  Holmes 

404 

Wheeler  v.  Bent 

61 

Wineburgh  v.  U.  S. 

Steam  & 

V.  Bo  wen 

499 

Street   Railway  Advertising 

V.  United  States 

42 

Co. 

495 

Wheelock  v.  Pierce 

104 

Wing  V.  Wheeler 

281 

Whitaker  v.  Green 

418 

Winn  V.  Sanford 

401 

Wliitcoml)  V.  Taylor 

270 

Winship   v.    Bass 

160,   163,    294, 

White  V.  British  Museum 

33 

295 

V.  Clapp 

887,  391 

Winslow  V.  Goodwin 

320 

V.  Cutler 

401 

Winsor  v.  Pratt 

32 

TABLE    OF    CASES    CITED. 
[The  figures  refer  to  the  Pages.] 


Wiiitlirop  V.  Miiiot 
Wolcott  V.  Wolcott 
Wood's  Estate 
Wood  V.  liarstow 

V.  Stone 

V.  Wasliburn 
Woodbury  r.  Luddy 

V.  Obear 
Woodward  r.  Lincoln 
Wood  worth  v.  Spring 
Worthington  r.  Klemm 
Wright  V.  Dunham 

V.  Netherwood 


375 

5 

299 

484 

350 

433 

4-23 

15,  48,  55,  58 

424 

130 

34,  35 

227 

67 


Wright   V.  Wright 

Wj'eth  V.  Stone 
Wy man  i\  Hooper 
I'.  Hubbard 
V.  Synimes 


XXV 


33,   126,   182, 

476 

484 

254,  257 

292 

40 


Y. 

Yarrington  v.  Robinson  498 

Yeackel  v.  Litclifield  257 

Yeoraans  v.  Brown         244,  246,  248 


INDEX    TO    STATUTES. 


Kevised  Statutes.  Page 

c.     69,  §  8 145 

General  Statutes. 

c.     91,  322 

Public  Statutes. 

c.   4,  §  1 486 

c.  87,  §  82 504 

§  91 504 

c.  no,  §  14 486 

c.  124,  §  3  .  .  .  .   324,  325 

c.  125,  §  4 341 

c.  127,  §  18 326 

§  19 326 

§  20 407 

§  23 206 

c.  132,  §  5 168 

c.  133,  §  1 15 

§  2 176 

§  3 184 

§  4 185 

c.  134,  §  15  ......  251 

c.  135,  §  3  .  .  .  .   324,  325 

c.  139,  §  2 132 

§  8 132 

c.  141,  §  27 9 

§  28 10 

c.  142,  §  9 324 

§  14 10 

c.  143,  §  2 428 

§  14 89 

c.  147,  §  6 326 

c.  156,  §  2 8 

§  3 10 

§  4 7 

§  9 182 

§  22 11 

§  24 11 

§  25 11 

§  26 12 

§  27 12 

§  28 13 

§  30 13 

§  31 13 

§  32 14 

§  33 14 


Page 

c.  156,  §  34 14 

§  35 15 

§  37 16 

§  39 17 

§  40 17 

§  45 20 

§  47 27 

c.  158,  §  4 19 

§  5 21 

§  6 22 

§  7 22 

§  8 22 

§  9 23 

§  10 23 

§  11 24 

§  12 24 

§  13 24 

§  14 24 

§  15 25 

§  16 25 

§  17 25 

§  19 25 

§  20 25 

§  21 26 

§  22 26 

c.  178,  §  1 376 

Revised  Laws. 

c.   3,  §  5,  cl.  24   .  .  .   42 

c.   8,  §  5  .  .  16,  71,  192,  321 

c.   9,  §  1 486 

c.  11,  §  254 491 

§  319 4 

c.  12,  §  23 296 

c.  13,  §  34 296 

c.  14,  §  8 502 

c.  15,  ....   279,420 

§  1 506 

§  2  .  .  .  .   209,  508 

§  3  .  .  .  .   299,  514 

§  4  .  204,  358,  517,  523 

§  5  .  208,  304,  356,  517 

§  6  .  .  .  .   208,  518 

§  7  .  .  8,  208,  304,  518 

§  8  .  .  .  242,  243,  518 


XXV 

Ill 

INDEX  TO 
Page 

c. 

15,  § 

9  .  . 

169,  518,  519 

§ 

10  .  . 

17,  169,  519 

§ 

11  .  . 

.   172,  519 

§ 

12  .  . 

516,  519,  520 

§ 

13  .  . 

516,  520,  521 

§ 

14  .  . 

.   510,  521 

§ 

15  .  . 

204,  356,  521 

§ 

16  .  . 

173,  419,  521 

§ 

17  .  . 

.  .  8,  522 

§ 

18  .   7C 

,  113,  315,522 

§ 

19  .  280 

,  316,  522,  523 

§ 

20  .  . 

.   280.  523 

28,  § 
37,  § 

9  .  . 

.  .  .  152 

c. 

3  .  . 

.  .  .  153 

§ 

4  .  . 

.  .  .  153 

§ 

14  .  . 

.   1G3,  164 

c. 

44,4, 

4  .  . 

...  491 

c. 

48,  § 

17 

...  147 

§ 

18  .  . 

.  ...  147 

§ 

19  .  . 

.  ...  147 

§ 

25  .  . 

.  ...  148 

§ 

108  .  . 

.  ...  148 

c. 

64,  § 

15  .  . 

.  .  .  .  239 

c. 

74,5, 

6  .  . 

.  .  .  .   89 

c. 

78,  § 

1  .  . 

.  ...  333 

§ 

5  .  . 

.  .  .  .  152 

§ 

18  .  . 

.  ...  152 

§ 

26  .  . 

.  ...  334 

§ 

27  .  . 

.  ...  334 

§ 

28  .  . 

.  ...  334 

§ 

29  .  . 

.  ...  334 

c. 

81,  § 

9  .  . 

.  ...  199 

§ 

10  .  . 

.  ...  482 

c. 

83,  § 

11  .  . 

.  ...  485 

§ 

29  .  . 

.  .  .  .  129 

§ 

31  .  . 

.  ...  129 

§ 

33  .  . 

.  ...  129 

c. 

86,  § 

10  .  . 

.  .  .  8,492 

§ 

12  .  . 

.  ...  492 

§ 

52  .  . 

.  ...  487 

§ 

87,  § 

53 

.'  .    .  487 

c. 

33  .  . 

.  .  .  8,492 

59  .  . 

.  .  .  8,493 

§ 

118  .  . 

.  .  .  .    8 

c. 

106,  § 

71  .  . 

.  .   494,  496 

§ 

72  .  . 

.  494,  495,  496 

§ 

73  .  . 

.  494,  495,  496 

§ 

74  .  . 

.  .   494,  496 

§ 

75  .  . 

.  .   494, 496 

§ 

76  .  . 

.  .   494,  496 

§ 

77  .  . 

.  .   494,  496 

§ 

78  .  . 

.  .   494, 496 

§ 

79  .  . 

.  .   494,  496 

c. 

100,  § 

17  .  . 

.  ...  502 

c. 

no.  § 

64  .  . 

.  ...  502 

c. 

ni,§ 

110  .  . 

.  ...  502 

c. 

113,  § 

25  .  . 

.  232,  365,  368 

Page 

c.  113,  §  42 505 

§  43 505 

§  55  ...  .   232,368 

c.  116,  §  18  .  96,  108,  129,  144, 

153 

§  30 502 

c.  117,  §  11 502 

c.  118,  §  61 428 

§  73 171 

c.  124,  §  1  .  .  .  .   328,  324 

c.  127,  §  28  .  .  .  150,  276,  277 

§  29  .  .  .  150,  276,  277 

§  30  .  .  .  149,  150,  277 

§  31  ...  .   150,277 

c.  128,      492 

§  85 396 

§  92 492 

c.  129,  §  1  .  .  .  .   245,  406 

§   2 400 

c.  131,  ...  30,  243,  422 

§  8  .  .  .  .   339,423 

§  9  .  .  .  .   423,427 

§  10  .  264,  338,  425,  427 

§  11  ...  .   377,  424 

§  12 426 

§  13 426 

c.  132,  §  1  ...  30,  327,  397 

§  2  .  .  .  .   327,  339 

■  §  3  .  .  .  .   328,  402 

§  4  .  .  .  .   328,  405 

§   5 400 

§   6 409 

§   7 409 

§   8 409 

§  9  .  .  .  340,  397,411 

§  10  ...  .   340,413 

§  11  ...  .   381,411 

§  12 397 

§  13  ...  .   332,409 

§  14 415 

c.  133,  §   1 483 

§  2  .  .  .  322,  348,  349 

§   3 341 

§   4 341 

§   5 341 

§  6  ......  346 

§   7 321 

c.  134,  §   3 243 

§  11  .  .  .  151,  402, 451 

c.  135,  §  1  .  .  .   30,32,  116 

§   2 40,42 

§   3 40 

§   4 32,  42 

§  5  ....  .  32^  78 

§   6 32 

§   7 30,  32 

SB 60 


INDEX  TO  STATUTES. 


XXIX 


Page 

C.  135,  §   9 68 

8  10 01 

§  11 91 

§  12 92 

§  13 92 

§  14 92 

§  15 92,93 

§  16  .  .  .  .30,  31,  149 

§  16  ...  .   332,408 

§  17 149 

§  18  ...  .   406,  407 

§  19 349 

§  20 352 

§  21  ...  .   206,  352 

§  22 87,  88 

§  23 88 

§  24 88 

§  25  ...  .   352,  4(50 

§  26 461 

§  27 461 

§  28 461 

§  29 462 

§  30  ...  .   406,  402 

c.  136,  §   1 71,94 

§   2 73 

§   8 30,  119 

§   5 100 

§   6 95,  199 

§   9 90,  198 

§  10 83 

§  11 83 

§  12 83 

c.  137,  §   1 107 

§  2  .  ,  .  .   107,  117 

§   3 106 

§   4 106 

§   5 165 

§  6  .  .  .  .   103,  165 

§   7 103 

§  8  .  .  .  .   103,  115 

§  9  .  .  .  104,  128,  472 

§  10  ...  .   123,  242 

§  11 1-24 

§  12  .  .  .  124, 181,  472 

§  13  .  .  .15,  124,  299 

§  14 124 

§  15  ...  .   124,  199 

c.  138,  §   1 114 

§   2 114 

§   3 114 

§   4 114 

§  5  .  .  .  .   122,282 

§   6 122 

§   7 123 

§   8 282 

§   9 199 

S  10 271 


Page 

e.  138,  §  11 271 

§  12  .  .  .  .  282,  368 
§  13  ...  .   283,371 

§  14 371 

§  15 371 

§  16 371 

§  17  ...  .  283,  371 
§  18  ...  .   283,-371 

§  19 371 

c.  139,  §   1 192 

§   2 193 

§   3 193 

§   4 193 

§  5  .  .  .  .  168, 169 
§  6  .  ,  .  .  172,  173 
§  8  .95,102,143,162,104 
§  9  .  .  .  102,  143,  163 
§  10  ...  .  143,  162 
§  11  .  159,162,  163, 2S1 

§  12 164 

§  13 164 

§  19 284 

c.  140,  §  1  .  .  .  177,  328,  ih-i 
§  2  .  .  .  .  177,329 
§  8  .  .  .  330,  335,  483 
§   4  .  .  .  .   360,  363 

§   5 361 

§   6 361 

§   7 363 

§   8 360 

§   9 361 

c.  141,  §  1  .  .  .203,204,  212 
§  2  .  .  .  .  204,212 
§  3  .  .  .  .  204,  212 
§  4  .  .  .  .  204,  213 
§   5  .  .  .  .  205,  215 

§   6 3u3 

§   7  .  .  .  .   303,  474 

§   9 197 

§  10  ...  .   196,  197 

§  11 197 

§  12 198 

§  13  ...  .   113,201 

§  14 202 

§  15 202 

§  16 202 

§  17 200 

§  18 200 

§  19 200 

§  20  ...  .   207,  359 

§  21 359 

§  22 359 

§  23  .  .  .  207, 208, 359 

§  24 209 

§  25 210 

§  26 203 

§  27 203 


XXX 


INDEX   TO   STATUTES. 


Page 

c.    141,  §    28 203 

§    29 203 

§    30 203 

§    31 203 

§    32 203 

c.   142,  §  1   .     .     .     .      211,  229 

§      2 216 

§  3   .     .     .     .      216,  218 

§  4   .     .     .     .      216,224 

§      5 216 

I      7 219 

§      8 219 

§  9  .     .     .     .     216,  217 

§    10 234 

§    11 226 

§  12   .     .     .  226, 227,  229 

§  12   .     .     .     .      469,  478 

§  13   ...     .      469,478 

§  14   ...     .      229,  478 

§  15   ...     .      227,478 

§  16   ...     .      228,  478 

§  17   ...     .      228,478 

I    18 229 

§    19 230 

§    20 229 

§    21 231 

§    22 236 

§    23 236 

§    24 233 

§  25   ...     .      106, 233 

§  26   .    163,  230,  284,  437 

§    30 234 

§    31 236 

c.   143,  83 

§  1   .     .     .     .      340,353 

§      2 353 

§      4 238 

§      5 238 

c.   144,  .     .     .    .  8,  341-346 

c.   145,  §      1 126 

§  2   .     .     .     .      127,  132 

§  3   .     .     .     .      127,  132 

§  4   .     .     .  126,  128,  132 

§      5 131 

§  6   .     .     .     .      133,  135 

§  7   .    133,  134,  135,  138 

§      8 134 

§      9 136 

§    10 142 

§  11   ...     .      137,  166 

§    12 140 

§    13 140 

§  14   ...     .      140,  310 

§    15 140 

§    16 138 

§    17 138 

§    18 142 


Page 

c.   145,  §    19 139 

§    20 8,  133 

§    21 1.33 

§  22    ...     .      159,  164 

§  23   ...     .      150,277 

§    24 277 

§    25 308 

§  27  ...  .  381,397 

§  28  .  .  ,  .8,  129,  455 

§  29  .  .  .  .  264,309 

§  30  ...  .   183,  310 

§  31 183 

§  32 451 

§  33  ...  .   332,  408 

§  35 187 

§  36 372 

§  37 166 

§  38 175 

§  40 8,  143 

§  41 143 

§  42  .  .  .  143,  162,  194 

c.  146,  §   1 239 

§  2  .  .  .  .  245,  399 

§   3 247 

§   4 2.39 

§   5 263 

§   6 246 

§  7  .  .  .  246,  251,  264 

§   8 247 

§  9  ...  251,  256,  270 

§  10 248 

§  11 266 

§  12 250 

§  13 266 

§  14  ...  .  254,  266 

§  15  .  .  .  193,  255,  266 

§  16 256 

§  17  .  .  .244,  251,  254 

§  18  ...  .   241,243 

§  19   264 

§  20 265 

§  21 266 

§  22 267 

§  23 265 

§  24 265 

§  25  ...  .  270,  372 

§  26 273 

§  27 273 

§  28 273 

§  29 278 

§  30 263 

§  31 271 

§  32 271 

§  33 263 

§  42  ...  .  143,  194 

c.  147,  §   1 149 

§   4 144 


INDEX  TO  STATUTES. 


XXXI 


c.  147,  § 
§ 
§ 
§ 


c.  148,  § 


Page 
...  145 
...  145 
.  .  .  169 
...  151 
...  151 
...  163 
...  164 
...  152 
154,  162,  1!)4 
.  188,  -275 
.  189,  275 
.  190,  278 
...  274 
...  274 
...  157 
8,448 


5  . 

6  . 

7  . 
9  . 

10  . 

11  . 

12  . 

13  . 

14  . 

15  . 

16  . 

17  . 

18  . 

19  . 
23  . 

1  . 

2 8,  240 


10 
U 
13 
14 


.  187,  516 
.  186, 272 
...  278 
...  277 
...  271 
...  254 
181,  261,  .S30 
...  249 
...  260 
...  449 
...  450 


§  15  ...  . 10,  89,  450 


c.  149,  § 


16 
17 
18 
19 
20 
21 
22 
24 
25 
26 
1 


§  2 


3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 


450 

450 

450 

258 

259 

249 

260 

.  .  .  100,  460 

430 

.  .  .   194,  256 

97,  120,  121,  141, 

155,  169.  279,  280 

97,  99,  120,  168, 

169,  242 

99,  121,  429 

141,  156,  436 

.  .  .  142 

...  156 

.  141,  156 

121,  159,  429 

...  428 

.  428,  429 

.  .  .  429 

...   97 

.  258, 432 

.   159,  430 

.   159,  431 

.  159,  431 


Page 

149,  §  17 432 

§  19  ...  .   162,431 

§  20 432 

§  21 432 

§  22 432 

§  23 437 

§  24  ...  .  432,441 

§  25 280 

§  26 442 

§  27 442 

§  29 445 

§  30 442 

§  31 444 

§  32 444 

§  33 444 

§  34 444 

§  35 446 

150,  §   3 314 

§  4  .  .  .  172,  184,  .302 

§   5 2b6 

§   6 294 

§   7 185 

§   9 185 

§  10 185 

§  11 320 

§  12 299 

§  14 299 

§  15  ...  .   300,428 

§  16 284 

§  17 317 

§  18 316 

§  20  ...  .  310,  365 

I  22 313 

§  23  .  .  .  232,  365,  367 

§  24  ...  .   206,232 

§  26  .  .  .  103, 232,  367 

§  27  ...  .   314,373 

§  28  ...  .  314,  373 

151,  §   9 399 

§  20 8 

152,  §  17 454 

§  24 400 

153,  §   1 30,  339 

§   5 95 

§  15  ...  .  267,  456 

§  16  ...  .   269,4.56 

§  17  ...  .   267,  456 

§  19  .  136,  140,  268,  269, 

400,  457 

§  20  ...  .   137,4.57 

§  21  .  137,268,  401,  458 

§  22  .  .  .  137,  268,  458 

§  23  .  137,  260,  401,  458 

§  24  ...  .   137,  458 

§  25 458 

§  31  ...  .   6,  9,  463 

§  32  ...  .  6,9,463 


xxxn 


INDEX   TO    STATUTES. 


Page 

c.   163,  §  33   .    128,  453,  454,  463 

§    34 453 

§    35 453 

§    30 30,  339 

§  37   ....     C,  9,  463 

c.   154,  §      1 479 

§  2  .     .     .  479,  480.  481 

§      3 480,481 

§      4 481,482 

§      5 482,483 

§      6 482 

§      7 482,483 

§      8 483,484 

§      9 484 

§    10 484 

§  11    ...     .      484,485 

§    12 485 

§  13    ...     .      485,  486 

§     14 486 

c.   155,  §    11 492 

c.   150,  §      6 251 

c.    159,  §    35 475 

c.    160,  §    21 206 

c.   162,  §      2 7 

§  3  .     .  7,  102.  104,  107 

§      4 9,455 

§  5   ....  9,  10,  158 

§      6 10 

§      7 10,  158 

§      8 463 

§      9 463 

§    10 6,  408 

§    11 6,468 

I    12 468 

§  13   ...     .      182,470 

§    14 471 

§    15 474 

§    16 472 

§    17 472 

§  18   .     .     .      6,  455,  464 

§  19   ...     .      453,  472 

§  20   ...     .      166, 472 

§    21 167 

§  22   .     .     .      10,  11,  167 

§    23 474 

§    24 475 

§    25 474 

§    27 468 

§    30 11,  28 

§    31 11 

§    32 11 

§    33 12 

§  34   ...     12,  385,  412 

§    35 12 

§    36 12,  13 

§    37 13,  316 

§    38 13,  165 


c.   162,  §  39  .     .     .      13,  14,  191 

§  40 14,  27 

§  41 14 

§  42 14 

§  43 14,  175 

§  44 15,300 

§  45  .     .     .       16,  72,  248 

§  45  ...     .      266,381 

§  46 16,  172 

§  47 16,  72 

§  48 16,  17 

§  49 17 

§  60 93 

§  65 26 

§  56 26,27 

§  57 27 

§  58 27 

§  59 27 

§  60 491 

c.    163,  §  45 469 

§  53 194 

§  82 505 

§  104 469 

§  105 469 

§  138 231 

c.   164,  §  1 17 

§  2  .     .      17,  18,  96,  119 

§  3 18 

§  4 18 

§  5 19 

§  6 20 

§  7 20,21 

§  8 21,429 

§  9 20,21 

§  10 21,  22 

§  11 22 

§  12 22 

§  13 22,23 

§  14 23 

§  15 23 

§  16 23 

§  17 23,24 

§  18 24 

§  19 24 

I  20 24 

§  21 24,25 

§  22 25 

§  23 25 

§  24 25 

§  25  ...     .  25,  26,  172 

§  26 26 

§  33 493 

§  34 493 

§  35 493 

c.   165,  §  56  ...     .      284,312 

§  60 284 

§  73 493 


INDEX  TO  STATUTES. 


XXXlll 


Page 

C.  171,  §   1  .  .  .  .   113,494 

§   2 494 

§  14 384 

§  15 384 

c.  172,  §   1  ...  113,  205,  494 
§   2  .  .  .  .   205,  495 

§   3 496 

§   4  .  .  .  .   296,  497 

§   5 497 

§   6 497 

§   7 498 

§   8 98,  498 

§   9 498 

§  10 499 

§  11 499 

c.  173,  §   5 186 

c.  174,  §   6 206 

§   7 206 

c.  175,  §  20 39 

§  23 39 

c.  178,  §   1 243 

§  55 406 

c.  180,  §   1 416 

§   2 417 

§   3 417 

§   4 417 

§   5 417 

§   6 417 

§   7 418 

§   8 418 

§   9 418 

§  10 418 

§  11  ...  .   418,419 
§  12 419 

C.  184,  §   1  .  .  .  .   376,  395 

§   5 382 

§   6 382 

§  12 377 

§  13 385 

§  22 377 

§  29 379 

§  31  ...  .   374,  379 

§  32 377 

§  33 387 

§  34 374 

§  35 381 

§  36 383 

§  37 384 

§  38 384 

§  39 378 

§  40 379 

§  41 386 

§  42 391 

§  43 376 

§  44  ...  .   379,  382 

§  45 393 

§  46 377 


Paoe 

c.  184,  §  47  ...  .   381,  388 

§  48 388 

§  49  ...  .   148,  383 

§  50 377 

§  51 377 

§  52  ...  .   382,  383 

§  53 391 

§  64 380 

§  55 380 

§  56 390 

§  57 392 

§  58 395 

§  59 395 

c.  185,  §   1  .  .  .  .   406, 419 

c.  189,  §  20  .  .  .  .  .  .  499 

§  50 500 

§  51 500 

§  52 500 

§  53 500 

§  54 601 

§  55 501 

§  66 601 

c.  191,  §  48 8 

§  49 8 

§  60 8 

§  61 8 

§  52 8 

§  53 8 

c.  204,  §  21 505 

§  23  .  .  .173,  385,  413 

c.  208,  §  29 93 

§  48 503 

Miscellaneous  Statutes. 

1783,  c.  24 84 

c.  36 108 

1856,  c.  173 4 

1858,  c.  93 3 

1862,  c.  68 4 

1870,  c.  359 466 

1871,  c.  365 466 

1873,  c.  314 126 

1874,  c.  205 128 

1884,  c.  131 15 

c.  141 27 

c;.  249 486 

1885,  c.  235 16 

c.  255  ...  .   323,  326 

c.  276 325 

c.  362 129 

1887,  c.  290  ...  .   323,  326 
c.  332,  §  2   ....    9 

1888,  c.  372 89 

1890,  c.  420,  §  1   ...   14,  27 

§  2   ...  11,  28 
c.  117 129 

1891,  c.  312 129 

c.  415,  §  1   .  .  9,  10,  89 


XXXIV 


INDEX   TO   STATUTES. 


Page 

Page 

1891,  c. 

415,  §2 12 

1901,  c.  297 513 

§4 

7 

1902,  c.  160 91,  92 

c. 

425    .     . 

508, 

51 

2,513 

c.  324 462 

1892,  c. 

116    .     . 

9 

c.  371     ...     .      8,  9,  446 

c. 

118    .    . 

68 

c.  473  315,317,513,516,517 

c. 

169    .     . 

375 

c.  474    ...     .      126,  128 

c. 

337,  §  1 

19 

c.  478     ..     .  378,  400,  456 

§3 

21 

c.  538     ..     ,       10,  90,  158 

1893,  c. 

151,  §  1 

24 

c.  544 346 

c. 

372,  §  1 

11 

Acts  of  Congress. 

c. 

469,  §  2 

23 

July  6, 1797, 1  Stat,  at  Large, 

c. 

469,  §  3 

23 

c.    11 507 

1894,  c. 

199    .     . 

23 

July  1,  1862,  c.    119      ...     507 

c. 

377,  §  1 

19 

June  30,  1864,  c.  173    507,  508,  509 

§3 

21 

July  14,  1870,  c.  255     ..     .     607 

1895,  c. 

215    .     . 

27 

June  13,  1898,  c.  448    .      507,  508 

c. 

307     .     . 

507 

509,  514 

1897,  c. 

147     .     . 

16 

April  12,  1902,  c.  500  ..     .     507 

1898,  c. 

131     .     . 

20,21 

c. 

234    .     . 

24 

English  Statutes. 

1899,  c. 

191,  §  1 

24 

31  Edward  III.  c.  11    .     .     .     108 

c. 

345,  §  1 

19 

21  Henry  VIII.  c.  5     ...     108 

§3 

21 

29  Charles  II.  c.  3    ...     .       84 

1900,  c. 

180    .     . 

.      22 

4  William  and  Mary,  c.  3    .      84 

c. 

144,  §  1 

.      24 

25  George  II.  c.  6     ...    .      40 

1901,  c. 

61     .    . 

.      27 

1  Victoria,  c.  26,  §  9  .     .    .      32 

THE   PROBATE  COURTS. 


CHAPTER   I. 

THE  PROBATE  COURTS:   THEIR  ORIGIN  AND  GENERAL 
JURISDICTION. 

The  colony  charter,  under  which  the  English  settlers  of 
Massachusetts  emigrated  and  organized,  contained  no  par- 
ticular provisions  for  the  establishment  of  courts.  It  was 
framed  for  the  regulation  of  a  commercial  and  land  corpo- 
ration, rather  than  with  a  view  to  the  establishment  of  a 
civil  and  political  government.  The  colonists  were  strongly 
attached  to  the  spirit  of  the  English  law,  and  adopted  its 
leading  maxims  and  its  forms  and  modes  of  proceeding,  so 
far  as  they  were  applicable  and  necessary  to  their  peculiar 
condition  and  wants.  The  English  probate  jurisdiction, 
with  which  they  were  familiar,  was  confided  to  the  ecclesi- 
astical courts,  whose  jurisdiction  was  exclusive  and  entirely 
separate  from  the  temporal  courts ;  but  there  could  be 
no  ecclesiastical  courts  in  the  colony.  There  was  no 
church  establishment  by  means  of  which  they  could  be 
organized  on  the  English  model,  nor  was  such  a  system 
consistent  with  the  religious  sentiments  and  purposes  of 
the  people.  Some  new  provision  was  therefore  necessary 
for  the  exercise  in  the  colony  of  the  important  powers 
given  to  the  ecclesiastical  courts  in  England  ;  and  as  at 
that  time  there  was  no  apparent  necessity  for  the  erection 
of  a  distinct  probate  court,  the  power  of  admitting  wills  to 

1 


2  riiOCEEDINGS    IN    THE    PROBATE    COUIITS. 

probate  and  of  granting  administration  was  given  to  the 
county  courts,  which  were  established  under  the  general 
authority  given  by  the  charter  to  the  governor  and  assist- 
ants to  govern  the  company  and  their  settlements.  The 
county  courts  had  jurisdiction  in  common  law,  probate,  and 
equity,  with  an  ultimate  appeal  to  the  governor  and  assist- 
ants. The  earlier  records  exhibit  probate  decrees  in  the 
same  pages  with  judgments  in  civil  actions  and  sentences 
in  criminal  prosecutions.  This  provision,  in  the  existing 
condition  of  the  colony,  was  practically  sufficient.  Orders 
were  passed  from  time  to  time,  as  experience  suggested,  to 
promote  the  convenient  and  prompt  settlement  of  estates ; 
but  the  probate  jurisdiction  remained  with  the  county 
courts  until  the  dissolution  of  the  colony  charter. 

Under  the  province  charter  of  William  and  Mary,  granted 
in  1691,  the  courts  were  newly  organized.  The  superior 
court  of  judicature,  the  court  of  common  pleas,  courts  of 
general  sessions,  and  of  justices  of  the  peace  were  estab- 
lished ;  but  the  charter  which  gave  to  the  General  Court 
authority  to  erect  courts  with  civil  and  criminal  jurisdic- 
tion ordained  that  the  governor  and  council  should  "  do, 
execute,  and  perform  all  that  is  necessary  for  the  probate 
of  wills,  and  granting  administrations  for,  touching  and 
concerning  any  interests  or  estate  which  any  person  or 
persons  shall  have  within  our  said  province  or  territory." 
Thus  the  probate  jurisdiction  was  taken  from  the  common- 
law  courts,  and  in  fact  made  independent  of  the  legislative 
power.  The  provincial  legislature  passed  an  act  erecting 
county  courts  of  probate,  but  it  was  negatived  by  the  king  ;  ^ 
but  under  the  authority  vested  in  the  governor  and  council 
by  the  charter,  probate  officers  were  appointed  in  the  several 
counties,  who  were  in  effect  surrogates,  exercising  a  dele- 

1  Parsons,  C.  J.,  in  Wales  v.  Willard,  2  Mass.  120. 


GENERAL   JURISDICTION.  3 

gated  authority,  from  whose  decrees  appeals  were  taken  to 
the  governor  and  council,  who  remained  the  supreme  ordi- 
nary, or  court  of  probate.  This  was  the  beginning  of  the 
probate  courts  as  distinct  tribunals. 

The  courts  thus  constituted  continued  to  exercise  pro- 
bate jurisdiction  until  the  formal  establishment  of  the 
county  probate  courts  under  the  State  constitution.  Stat- 
utes were  enacted  by  the  provincial  legislature  recognizing 
their  jurisdiction,  extending  their  powers  and  duties,  and 
to  some  extent  regulating  their  proceedings.  The  constitu- 
tion of  1780  provided  for  the  regulation  of  times  and  places 
of  holding  probate  courts,  and  for  appeals  from  the  judges 
of  probate  to  the  governor  and  council  until  the  legislature 
should  make  further  provision.  This  system  continued  in 
actual  operation  until  the  passage  of  the  act  of  1784,  by 
which  the  probate  courts  were  first  formally  established. 
That  statute  provided  for  the  holding  of  a  court  of  pro- 
bate within  the  several  counties  of  the  commonwealth,  and 
for  the  appointment  of  judges  and  registers  of  probate, 
and  transferred  the  appellate  jurisdiction  from  the  gov- 
ernor and  council  to  the  supreme  judicial  court,  which  was 
constituted  the  supreme  court  of  probate.  •  The  same  stat- 
ute authorized  the  courts  of  probate  to  allow  wills  and 
grant  administrations ;  to  appoint  guardians  for  minors 
and  insane  persons ;  to  examine  and  allow  the  accounts 
of  executors,  administrators,  and  guardians ;  and  to  act 
in  such  other  matters  and  things  as  they  should  have 
cognizance  and  jurisdiction  of  by  the  laws  of  the 
commonwealth. 

The  courts  thus  organized  continued  to  exercise  probate 
jurisdiction  until  the  statute  of  1858,  c.  93,  which  abol- 
ished the  office  of  judge  of  probate,  and  provided  for  the 
appointment  in  each  county  of    a  suitable  person  to  be 


4         PROCEEDINGS  IN  THE  PROBATE  COURTS. 

judge  of  probate  and  judge  of  the  court  of  insolvency, 
and  to  be  called  the  judge  of  probate  and  insolvency.  The 
same  statute  provided  for  the  election  of  registers  of  pro- 
bate ^  and  insolvency,  to  hold  office  for  the  term  of  five 
years,  and  transferred  all  the  jurisdiction  and  authority 
then  exercised  by  the  judges  of  probate  to  the  judges  of 
probate  and  insolvency.  The  General  Statutes  of  1860 
provided  that  judges  of  probate  and  insolvency  should 
continue  to  hold  their  offices  according  to  the  tenor  of 
their  commissions,  and  that  the  judge  and  register  of 
probate  and  insolvency  in  each  county  should  continue 
to  be  judge  and  register  of  the  probate  court  in  such 
county. 

By  the  statute  of  1862,  chapter  68,  probate  courts  were 
made  courts  of  record.  The  peculiar  and  appropriate 
jurisdiction  of  the  probate  court,  embracing  the  probate  of 
wills  and  granting  administrations,  and  their  incidents,  is 
the  same  as  that  of  the  English  ecclesiastical  courts. 
Such  was  the  jurisdiction  first  exercised  by  the  governor 
and  council,  and  their  surrogates,  under  the  province 
charter.  But  the  powers  of  the  probate  court  have  been 
gradually  increased  by  a  series  of  state  and  provincial 
statutes,  reaching  back  to  the  time  of  their  separation 
from  the  common-law  courts.  Jurisdiction  has  been  given 
to  them  of  matters  formerly  within  the  exclusive  cogni- 
zance of  the  courts  of  common  law,  and  not  analogous 
to  any  proceeding  of  the  probate  court  as  a  court  of 
ecclesiastical  jurisdiction.  These  various  statutes,  based 
upon  the  suggestions  of  practical  experience,  and  passed 

^  Registers  of  probate  had  been  previously  elected  under  St.  of 
1856,  c.  173.  The  Revised  Laws  provide  that  a  register  of  probate 
and  insolvency  shall  be  elected  in  each  county  in  1903,  and  every  fifth 
year  thereafter.     R.  L.  c.  11,  §  319. 


GENERAL   JURISDICTION.  5 

with  a  view  of  promoting  the  prompt  and  economical  dis- 
position of  the  matters  to  which  they  relate,  have  resulted 
in  establishing  the  large  jurisdiction  jiow  exercised  by  the 
probate  court. 

This  jurisdiction  is  separate  and  exclusive.  By  the 
separation  of  the  probate  and  common-law  jurisdictions 
under  the  provisions  of  the  province  charter,  the  separa- 
tion between  them  became  as  well  settled  in  this  country 
as  in  England,  and  the  same  distinction  has  been  substan- 
tially maintained.  The  decrees  of  the  probate  court,  upon 
subjects  within  its  jurisdiction,  are  conclusive  and  final, 
unless  appealed  from.^  They  cannot  be  called  in  question 
in  the  common-law  courts  upon  collateral  proceedings.'-^  A 
writ  of  error  will  not  lie  to  a  judgment  of  the  probate 
court ;  ^  nor  will  certiorari  lie  from  the  supreme  court  to 
the  probate  court.*  None  of  the  processes  devised  to  re- 
examine the  decisions  of  the  common-law  courts  are  appli- 
cable to  the  probate  courts.^ 

And  as  the  proceedings  of  the  probate  courts  are  not 
according  to  the  course  of  the  common  law  and  cannot 
be  revised  in  a  common-law  court  by  a  common-law  pro- 
cess, its  decrees,  when  the  court  exceeds  its  jurisdiction, 

^  Dublin  V.  Chadbourn,  16  Mass.  433;  Parker  v.  Parker,  11  Cush. 
519,  524  ;  Shores  v.  Hooper,  153  Mass.  228,  232. 

2  Pierce  v.  Prescott,  128  Mass.  140.  But  see  Brigham  i\  Fayer- 
weatlier,  140  Mass.  411,  413  (explained  in  Sly  v.  Hunt,  159  Mass. 
151);  and  Dallinger  v.  Richardson,  176  Mass.  77. 

3  Smith  V.  Rice,  11  Mass.  507,  513;  Derorae  v.  Vose,  140  Mass. 
575. 

*  Peters  v.  Peters,  8  Cush.  529,  543 ;  Browne  j^Doolittle,  151  Mass. 
595,  600;  and  cases  cited. 

5  McKim  V.  Doane,  137  Mass.  199  ;  Wolcott  v.  Wolcott,  140  Mass. 
194 ;  Harris  v.  Starkey,  176  Mass.  445.  For  a  discussion  as  to  the 
jurisdiction  of  the  probate  court,  see  Gale  v.  Nickerson,  144  Mass. 
415;  Tucker  v.  Fisk,  154  Mass.  574. 


6         PROCEEDINGS  IN  THE  PROBATE  COURTS. 

are  necessarily  void.  Other  erroneous  and  irregular  judi- 
cial proceedings,  which  can  be  revised  by  a  superior  com- 
mon-law court,  are  voidable  only,  and  are  good  and  valid 
until  reversed.  But  the  irregular  decree  of  the  probate 
court  is  a  nullity,  and  may  be  set  aside  in  any  collateral 
proceeding  by  plea  and  proof.  ^  .  The  sure  and  convenient 
remedy,  however,  of  any  party  aggrieved  by  a  decree  of  the 
probate  court  is  by  appeal  to  the  supreme  court  of  probate 
in  the  manner  provided  by  statute,  except  in  the  special 
cases  where  the  appeal  must  be  taken  to  the  superior  court.^ 
The  supreme  judicial  court  is  constituted  the  supreme 
court  of  probate.  This  appellate  jurisdiction  is  vested 
in  the  same  court  with  that  from  the  common-law  courts 
(and  that  for  a  very  wise  reason,  that  there  might  not  be 
conflicting  decisions  between  two  supreme  courts  admin- 
istering the  same  laws),  but  in  another  and  distinct  capac- 
ity as  if  it  were  a  distinct  court.^     It  has  a  superintending 

1  Wales  V.  Willard,  2  Mass.  120;  Cutts  v.  Haskins.  9  Mass.  543; 
Smith  V.  Rice,  11  Mass.  506,  513;  Holyoke  v.  Haskins,  5  Pick.  20;, 
Coffin  V.  Cottle,  9  Pick.  287;  Jenks  v.  Rowland,  3  Gray,  536;  Joch- 
umsen  v.  Suffolk  Savings  Bank,  3  Allen,  87;  Thayer  v.  Winchester, 
133  Mass.  447  ;  and  cases  cited. 

2  Post,  chap.  xxi.  A  person  aggrieved  by  an  order,  sentence,  de- 
cree, or  denial  of  a  probate  court  upon  a  petition  brought  under  section 
33  of  chapter  153  of  the  Revised  Laws,  or  upon  a  petition  of  a  married 
■woman  concerning  her  separate  estate,  or  upon  a  petition  or  applica- 
tion concerning  the  care,  custody,  education,  and  maintenance  of 
minor  children  provided  for  by  sections  31,  32,  and  37  of  said  chapter, 
may  appeal  therefrom  to  the  superior  court  in  the  manner  provided  in 
sections  10  and  11  of  chapter  162  of  the  Revised  Laws  as  to  appeals  to 
the  supreme  judicial  court;  and  all  proceedings  on  such  appeals  shall 
be  the  same,  so  far  as  practicable,  as  on  appeals  to  the  supreme  judi- 
cial court.     R   L  c.  162,  §  18. 

^  Peters  v.  Peters,  8  Cush.  529.  In  the  opinion  in  this  case  the 
subject  of  the  jurisdiction  of  the  probate  courts  is  examined  at  length 
by  Shaw,  C.  J.     See  Browne  v.  Doolittle,  151  Mass.  600. 


GENERAL   JURISDICTION.  7 

and  revisory  power  to  re-examine  and  affirm  or  reverse  all 
orders  and  decisions  in  probate,  but  as  an  appellate  probate 
court.^ 

GENERAL   STATUTE   JURISDICTION. 

The  jurisdiction  of  the  probate  courts  is  incidentally 
considered  in  the  following  chapters  in  connection  with 
the  various  subjects  of  which  they  have  cognizance.  Their 
general  jurisdiction  is  thus  defined  by  the  following  sec- 
tions of  chapter  162  of  the  Revised  Laws: 

"  Sect.  2.  The  prol)ate  courts  shall  be  courts  of  superior 
and  general  jurisdiction  with  reference  to  all  cases  and 
matters  in  which  they  have  jurisdiction,  and  it  shall  not 
be  necessary  for  any  order,  decree,  sentence,  warrant,  writ, 
or  process  which  may  be  made,  issued,  or  pronounced  by 
them  to  set  out  any  adjudication  or  circumstances  with 
greater  particularity  than  would  be  required  in  other 
courts  of  superior  and  general  jurisdiction,  and  the  like 
presumption  shall  be  made  in  favor  of  proceedings  of  the 
probate  court  as  would  be  made  in  favor  of  proceedings 
of  other  courts  of  superior  and  general  jurisdiction."  ^ 

"  Sect.  3.  The  probate  court  shall  have  jurisdiction  of 
the  probate  of  wills,  of  granting  administration  of  the 
estates  of  persons  who,  at  the  time  of  their  decease,  were 
inhabitants  of  or  resident  in  the  county,  and  of  persons 
who  die  out  of  the  commonwealth  leaving  estate  to  be 
administered  within  the  county  ;    of  the   appointment   of 

^  See  note  5,  p.  5. 

2  It  appears  to  have  been  assumed  by  the  compilers  of  the  Revised 
Laws  that  St.  1891,  c.  415,  §  4,  which  is  embodied  in  R.  L.  c.  162,  §  2, 
superseded  P.  S.  c.  150,  §  4.  As  to  the  effect  of  adjudication  of  pro- 
bate court  as  to  residence  of  a  person,  see  McFeely  v.  Scott,  128 
Mass.  16;  Derome  v.  Vose,  140  Mass.  575;  Cummings  v.  Hodgdon, 
147  Mass.  21 ;  Dalliuger  v.  Richardson,  176  Mass.  77. 


8         PROCEEDINGS  IN  THE  PROBATE  COURTS. 

guardians  to  minors  and  others ;  of  all  matters  relating 
to  the  estates  of  such  deceased  persons  and  wards;  of 
petitions  for  the  adoption  of  children,  and  for  the  change 
of  names  ;  and  of  such  other  matters  as  have  been  or  may 
be  placed  within  their  jurisdiction."  ^ 

1  P.  S.  c.  156,  §  2. 

The  probate  court  has  jurisdiction  also  to  commit  insane  persons 
and  dipsomaniacs,  R.  L.  c.  87,  §§  33,  59 ;  to  commit  feeble-minded, 
li.  L.  c.  87,  §  118;  to  appoint  receivers  for  property  of  absentees 
whose  whereabouts  are  unknown  and  who  have  wives  or  minor  chil- 
dren dependent  upon  them,  to  make  orders  for  the  care,  management, 
and  sale  of  such  property,  and,  if  such  absentee  does  not  appear  and 
claim  the  unexpended  balance  of  such  property  within  fourteen  years 
after  the  date  of  his  disappearance  or  absconding  as  found  and  re- 
corded by  the  court,  to  distribute  the  property  as  if  the  absentee  had 
died  intestate  on  the  day  fourteen  years  after  said  date,  R.  L.  c.  144  ; 
to  compel  parents  to  support  minor  children  under  guardianship, 
R.  L.  c.  145,  §  28 ;  to  determine  all  questions  relative  to  the  tax  on 
collateral  legacies  and  successions,  R.  L.  c.  15,  §  17;  to  administer 
French  spoliation  claims,  St.  1902,  c.  371 ;  to  authorize  the  marriage 
of  minors,  R.  L.  c.  151,  §  20;  to  hear  and  determine  petitions  alleging 
that  a  person  is  without  due  process  of  law  deprived  of  his  liberty  or 
held  in  custody  against  his  will,  but  not  applying  to  a  person  convicted 
of  crime  and  serving  sentence  therefor,  R.  L.  c.  191,  §§  48-53 ;  to  en- 
force specific  performance  (concurrently  with  the  supreme  judicial 
court  and  the  superior  court)  of  a  written  agreement  for  conveyance  of 
real  estate  where  the  owner  dies  or  is  put  under  guardianship  before 
making  the  conveyance,  R.  L.  c.  148,  §  I ;  to  authorize  sale  of  real  es- 
tate held  in  trust  under  a  will,  when,  under  the  provisions  of  the  will, 
such  sale  is  dependent  on  consent  of  a  person  who  has  deceased,  R.  L. 
c.  148,  §  2  ;  to  appoint  conservators  of  property  of  persons  who  are 
aged  or  mentally  weak,  R.  L.  c.  145,  §  40;  to  appoint  temporary  guard- 
ians in  certain  cases,  R.  L.  c.  145,  §  20;  and,  except  in  the  county  of 
Suffolk,  to  commit  juvenile  offenders,  R.  L.  c.  86,  §  10. 

The  probate  court  has  also  jurisdiction  to  appoint  an  administrator 
for  the  purpose  of  collecting  and  receiving  assets  which,  like  the  French 
spoliation  claims,  will  not  be  general  assets  of  the  estate  of  the  intes- 
tate, or  liable  for  his  debts,  but  will  belong  to  particular  persons,  and 
the  probate  court  has  also  jurisdiction  of  the  settlement  of  the  accounts 
of  such  administrator.    Sargent  v.  Sargent,  108  Mass.  420  ;  Lamsou  v. 


GENERAL   JURISDICTION.  9 

"  Sect.  4.  The  probate  court  shall  have  exclusive  original 
jurisdiction  of  petitions  of  married  women  relative  to  their 
separate  estate,  and  of  petitions  or  applications  relative 
to  the  care,  custody,  education,  and  maintenance  of  minor 
children  which  is  provided  for  by  sections  thirty-one, 
thirty -two,  and  thirty-seven  of  chapter  one  hundred  and 
fifty-three  "  of  the  Revised  Laws.^ 

"  Sect.  5.  The  probate  court  shall  have  jurisdiction  in 
equity,  concurrent  with  the  supreme  judicial  court  and 
with  the  superior  court,  of  all  cases  and  matters  relative 
to  the  administration  of  the  estates  of  deceased  persons, 
to  wills  or  to  trusts  which  are  created  by  will  or  other 
written  instrument.  Such  jurisdiction  may  be  exercised 
upon  petition  according  to  the  usual  course  of  proceed- 
ings in  the  probate  court."  ^ 

Knowles,  170  Mass.  295.  To  remove  the  doubt  suggested  by  the  court 
in  Sargent  v.  Sargent,  168  Mass.  420,  425,  as  to  whether  sureties  on  an 
administrator's  bond  in  the  ordinary  form  would  be  liable  for  the  ad- 
ministrator's failure  to  distribute  a  French  spoliation  claim  in  accord- 
ance with  the  order  of  the  probate  court,  St.  1902,  c.  371,  was  enacted. 

The  jurisdiction  of  the  probate  court  to  determine  all  questions 
relative  to  the  tax  on  collateral  legacies  and  successions  does  not  take 
away  the  right  of  a  legatee  to  sue  at  common  law  in  the  superior  court 
for  his  legacy.     Essex  v.  Brooks,  164  Mass.  79. 

For  discussion  of  the  law  imposing  tax  on  collateral  legacies,  etc., 
see  chapter  xxiv,  post. 

1  St.  1887,  c.  332,  §  2. 

2  p.  S.  c.  141,  §  27;  St.  1891,  c.  415,  §  1;  St.  1892,  c.  116. 
Swasey  v.    Jaques,  144  Mass.  135.      The  supreme  judicial  court 

has  no  jurisdiction  as  a  court  of  equity  to  compel  a  probate  account- 
ing. Green  v.  Gaskill,  175  Mass.  265;  Greene  u.  Brown,  180  Mass. 
308. 

The  probate  court  has  jurisdiction  of  a  petition  by  one  of  the  next 
of  kin  of  a  testator  for  instructions  as  to  the  construction  of  a  will. 
Healy  v.  Reed,  153  Mass.  197. 

In  Abbott  V.  Gaskins,  181  Mass.  (63  N.  E.  Reporter,  933,  decided 
May  23,  1902),  it  was  held  that  the  probate  court  does  not  have  power 


10        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Sect.  6.  If  a  case  is  within  the  jurisdiction  of  the 
pi'obate  courts  in  two  or  more  counties,  the  court  vvliich 
first  takes  cognizance  thereof  by  the  commencement  of 
])ruccedings  therein  shall  retain  jurisdiction  thereof,  and 
shall  exclude  the  jurisdiction  of  the  probate  courts  of  all 
otiier  counties  ;  and  the  administration  or  guardianship 
which  is  first  granted  shall  extend  to  all  the  estate  of  the 
deceased  or  ward  in  the  commonwealth."  ^ 

"  Sect.  7.  All  matters  of  trust  of  which  probate  courts 
have  jurisdiction,  except  those  arising  under  wills,  shall 
be  within  the  jurisdiction  of  the  probate  court  of  any 
county  in  which  any  of  the  parties  interested  in  the  trust 
reside,  or  in  which  any  of  the  land  held  in  trust  is  situated  ; 
but  such  jurisdiction,  when  once  assumed,  shall  exclude 
the  probate  court  of  any  other  county  from  taking  juris- 
diction of  any  matter  subsequently  arising  in  relation  to 
the  same  trust."  ^ 

miscellaneous  provisions  relating  to  probate  courts. 

[Revised  Laws,  Chap.  162,  §§  29-49.] 

"  Sect.  22.  The  judges  of  the  probate  courts,  or  a  ma- 
jority of  them,  shall  from  time  to  time   make  rules  for 

to  authorize  the  executors  of  a  will  to  arbitrate  or  compromise  contro- 
versies between  persons  claiming  under  the  will  and  those  claiming 
under  the  statutes  regulating  the  descent  and  distribution  of  intestate 
estates.  The  power  was  claimed  by  the  probate  court  under  St.  1891, 
c.  415,  §  1,  now  embodied  in  R.  L.  c.  162,  §  5.  It  is  given  exclusively 
to  the  supreme  judicial  court  by  P.  S.  c.  142,  §  14,  now  R.  L.  c.  148, 
§  15;  but  the  proceedings  and  decrees  of  the  probate  courts  prior  to 
June  28,  1902,  authorizing  and  confirming  such  compromises,  and  the 
probate  of  wills  to  be  executed  in  accordance  with  such  compromises, 
are  confirmed  by  St.  1902,  c.  538,  as  if  such  proceedings  and  decrees 
had  been  originally  made  and  entered  in  the  supreme  judicial  court. 

1  P.  S.  c.  156,  §  3. 

2  P.  S.  c.  141,  §  28. 


GENERAL   JUllISDICTION.  11 

regulating  the  practice  and  for  conducting  the  business 
in  their  courts  in  all  cases  not  expressly  provided  for  In- 
law, and  shall  prescribe  forms,  and,  as  soon  as  con- 
venient after  making  or  presenting  them,  shall  submit  a 
copy  of  their  rules,  forms,  and  course  of  proceedings  to 
the  supreme  judicial  court,  may  alter  and  amend  them, 
and,  from  time  to  time,  make  such  other  rules  and  forms 
for  regulating  the  proceedings  in  the  probate  courts  as 
it  considers  necessary  in  order  to  secure  regularity  and 
uniformity."  ^ 

"  Sect.  30.  The  supreme  judicial  court  and  the  probate 
court  shall  make  rules  requiring  notice  of  any  hearing, 
motion,  or  other  proceeding  before  said  courts  to  be  given 
to  parties  interested  or  to  the  attorney  who  has  entered 
an  appearance  for  them."  ^ 

"  Sect.  31.  Judges  of  the  probate  courts  may  transact 
business  out  of  court  at  any  time  and  place,  if  all  parties 
who  are  entitled  to  notice  assent  thereto  in  writing  or 
voluntarily  appear  ;  and  in  such  cases,  their  decrees  shall 
be  entered  as  of  such  sessions  of  the  court  as  the  con- 
venience of  the  parties  may  require."  ^ 

Sect.  32.  Orders  of  notice  and  other  official  acts  which 
are  passed  as  of  course,  and  which  do  not  require  a 
previous  notice  to  an  adverse  party,  may  be  issued  and 
performed  at  any  time. "  ^ 

1  P.  S.  c.  156,  §  22;  St.  1893,  c.  372,  §  1. 

AVhen  the  rules  require  the  last  publication  of  a  notice  in  probate 
proceedings  to  be  two  days  at  least  before  the  return  day,  the  probate 
court  has  no  authority  to  order  such  publication  to  be  one  day  at  least 
before  such  day;  and  all  proceedings  based  upon  such  a  notice  are 
invalid.     Baker  v.  Blood,  128  Mass.  543. 

2  St.  1890,  c.  420,  §  2. 

3  P.  S.  c.  156,  §  24. 
*  Ibid.  §  25. 


12        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Sect.  33.  Probate  courts  shall  have  like  power  to  en- 
force all  orders,  decrees,  and  sentences  made  by  them  in  the 
exercise  of  any  authority  or  jurisdiction  which  may  be  con- 
ferred upon  them,  and  to  puuish  contempt  of  their  authority, 
as  the  supreme  judicial  court  has  in  like  cases."  ^ 

"  Sect.  34.  A  warrant  or  commission  for  the  appraisal 
of  an  estate,  for  examining  the  claims  on  insolvent  estates, 
for  the  partition  of  land,  or  for  the  assignment  of  dower  or 
curtesy  or  other  interests  in  land,  may  be  revoked  by  the 
court  for  sufficient  cause,  and  a  new  commission  may  be 
issued  or  other  appropriate  proceedings  taken."  ^ 

"  Sect.  35.  Decrees  and  orders  of  the  probate  courts  and 
of  the  judges  tliereof  shall  be  made  in  writing,  and  the  reg- 
isters shall  record  in  books  which  they  shall  keep  for  the 
purpose  all  such  decrees  and  orders,  all  wills  proved  in  the 
court,  with  the  probate  thereof,  all  letters  testamentary  and 
of  administration,  all  warrants,  returns,  reports,  accounts, 
and  bonds,  and  all  other  acts  and  proceedings  required  to 
be  recorded  by  the  rules  of  the  court  or  by  the  order  of  the 
judge."  2 

"  Sect.  36.   Each  register  shall  keep  a  docket  of  all  cases 

1  St.  1891,  c.  415,  §  2. 

2  P.  S.  c.  156,  §  26. 

The  power  of  the  probate  courts  to  revoke  their  own  decrees  is  not 
limited  to  the  proceedings  specified  in  the  statute.  They  have  always 
exercised  the  power  for  the  correction  of  errors  arising  from  fraud  or 
mistake.  For  a  full  examination  of  the  authorities  on  this  subject, 
see  Waters  i'.  Stickney,  12  Allen,  1.  See  also  Richardson  v.  Hazle- 
ton,  101  Mass.  108;  Pierce  v.  Prescott,  128  Mass.  145;  Cleveland?;. 
Quilty,  ibid.  578;  Newell  v.  West,  149  Mass.  520;  Harris  v.  Starkey, 
176  Mass.  445 ;  and  cases  cited.  The  revocation  may  be  made  on  a 
petition  for  a  review  of  the  decree,  after  notice  to  all  persons  inter- 
ested. A  decree  may  be  revoked  after  the  time  allowed  for  an  appeal 
from  it  has  expired.     Cleveland  v.  Quilty,  supra. 

«  P.  S.  0.  156,  §  27.    • 


GENERAL  JURISDICTION.  13 

and  matters  in  the  probate  court  of  his  county,  and  shall 
enter  therein  every  case  or  matter  by  its  appropriate  title 
and  number,  brief  memoranda  of  all  proceedings  had  and 
papers  filed  therein,  the  dates  of  such  proceedings  or  filing 
of  such  papers,  and  references  to  the  places  in  which  the 
proceedings  or  papers  are  recorded,  if  there  is  a  record 
thereof.  He  shall  also  keep  a  separate  alphabetical  in- 
dex of  all  such  cases  and  matters,  which  shall  refer  both 
to  said  docket  and  to  the  files  of  the  court.  Such  docket 
and  index  shall  at  all  reasonable  times  be  open  to  public 
inspection."  ^ 

"  Sect.  37.  Oaths  which  may  be  required  in  proceedings 
in  probate  courts  may  be  administered  by  the  judge  or  reg- 
ister in  or  out  of  court  or  by  a  justice  of  the  peace,  and, 
when  administered  out  of  court,  a  certificate  thereof  shall 
be  returned  and  filed  or  recorded  with  the  proceedings;  but 
the  judge  may  require  any  such  oath  to  be  taken  before 
him  in  open  court."  ^ 

"  Sect.  38.  If  an  executor,  administrator,  guardian,  or 
trustee  resigns  his  trust  and  neglects  or  refuses  to  deliver 
to  his  successor  all  the  property  held  by  him  under  his 
trust,  the  probate  court  may,  upon  the  application  of  such 
successor  of  any  person  beneficially  interested,  order  such 
delivery  to  be  made,  and  shall  have  like  powers  for  enforc- 
ing such  order  as  are  given  to  it  by  the  provisions  of  section 
thirty-three."  3 

"  Sect.  39.  A  probate  court  may,  upon  application  of  a 
person  interested  in  an  estate  in  process  of  settlement  in 
such  court,  direct  the  temporary  investment  of  any  money 
belonging  to  such  estate  in  securities  to  be  approved  by  the 
judge  ;  or  it  may  authorize  the  money  to  be  deposited  in 

1  P.  S.  c.  156,  §  28.  2  Ibid.  §  30.  »  jbid.  §  31. 


14        PROCEEDINGS  IN  THK  PROBATE.  COURTS. 

any  bank  or  institution  in  this  commonwealth  which  is 
empowered  to  receive  sucli  deposits,  upon  such  interest 
as  such  bank  or  institution  may  agree  to  pay."  ^ 

"  Sect.  40.  A  duly  authorized  attorney-at-law  may  enter 
his  appearance  for  the  party  represented  by  him  in  any 
proceeding  in  a  probate  court,  and  all  processes  and 
notices  which  may  be  served  upon  him  shall  have  the 
same  force  and  effect  as  if  served  upon  the  party  whom 
he  represents."^ 

"  Sect.  41.  In  proceedings  in  probate  courts,  the  peti- 
tioner or  the  respondent  may,  at  any  time  after  the  filing 
of  the  petition,  file  interrogatories  in  the  register's  office 
for  the  discovery  of  facts  and  documents  material  to  the 
support  or  defence  of  the  proceeding.  Such  interroga- 
tories shall  be  answered  under  oath  by  the  adverse  party 
in  the  same  manner  and  subject  to  the  same  restrictions 
and  regulations  as  are  provided  by  chapter  one  hundred 
and  seventy-three  relative  to  interrogatories  in  civil 
actions."  ^ 

"  Sect.  42.  If  a  party  neglects  or  refuses  to  expunge, 
amend,  or  answer  according  to  the  requisitions  of  said 
chapter  one  hundred  and  seventy-three,  the  petition  shall 
be  dismissed  or  its  prayer  granted,  or  such  other  order 
or  decree  entered  as  may  be  required."* 

"  Sect.  43.  Upon  complaint  to  a  probate  court  by  a  per- 
son interested  in  the  estate  of  a  person  deceased  against  a 
person  who  is  suspected  of  having  fraudulently  received, 
-concealed,  embezzled,  or  conveyed  away  any  property,  real 
or  personal,  of  the  deceased,  the  court  may  cite  such  sus- 
pected person,  although  he  is  executor  or  administrator, 
to  appear  and  be  examined  under  oath  upon  the  matter  of 

1  P.  S.  c.  1.56,  §  32.  2  St.  1890,  c.  420,  §  1. 

8  P.  S.  c.  156,  §  33.  *  Ibid.  §  34. 


GENERAL   JURISDICTION.  15 

the  complaint.  If  the  person  so  cited  refuses  to  appear 
and  submit  to  examination,  or  to  answer  such  interroga- 
tories as  may  be  lawfully  propounded  to  him,  the  court 
may  commit  him  to  jail  until  he  submits  to  the  order 
of  the  court.  The  interrogatories  and  answers  shall  be 
in  writing,  signed  by  the  party  examined,  and  shall  be 
filed  in  the  com-t."  ^ 

*'  Sect.  44.  In  cases  which  are  contested  before  a  pro- 
bate court,  or  before  the  supreme  court  of  probate,  costs 
and  expenses  ^  in  the  discretion  of  the  court  may  be 
awarded  to  either  party,  to  be  paid  by  the  other  party, 
or  they  may  be  awarded  to  cither  or  both  parties  to  be 
paid  out  of  the  estate  which  is  the  subject  of  the  contro- 
versy, as   justice  and  equity  may  require.^     If   costs   are 

1  P.  S.  c.  133,  §  1. 

2  Sfc  1884,  c.  131. 

8  General  rule  as  to  costs.  Under  the  general  rule,  no  costs  are 
allowed  in  contested  cases,  in  the  probate  court,  or  supreme  court  of 
probate.  When  the  contest  is  made  upon  frivolous  pretences,  or  for 
reasons  which  the  appellant  knew  or  ought  to  have  known  were  un- 
founded, costs  are  allowed.  But  when  the  case  presents  questions  of 
law  upon  which  the  parties  may  not  unreasonably  differ,  and  upon 
which  either  may  properly  claim  the  instructions  of  the  court,  no  costs 
are  allowed.  Osgood  v.  Breed,  12  Mass.  536;  Nickerson  i\  Buck,  12 
Cush.  335;  Woodbury  v.  Obear,  7  Gray,  472;  Waters  v.  Stickney,  12 
Allen,  17;  Chapiu  u.  Miner,  112  INIass.  271  ;  and  cases  cited.  Until 
the  passage  of  St.  of  1884,  c.  131,  counsel  fees  and  other  expenses 
were  not  allowed  as  costs,  and  taxable  costs  only  were  allowed.  Brown 
V.  Corey,  134  Mass.  249;  Morrill  v.  Wiseman,  ibid.  252  note;  Willard 
V.  Lavender,  147  Mass.  15  ;  and  cases  cited.  St.  1884,  c.  131,  amended 
P.  S.  c.  156,  §  35,  by  inserting  the  words  "and  expenses"  after  the 
word  "  costs." 

The  probate  court  has  no  power  to  allow  costs  after  a  final  decree 
has  been  entered  in  the  controversy  in  which  the  costs  accrued.  Lucas 
!;.  Morse,  139  Mass.  59. 

By  R.  L.  c.  137,  §  13,  special  administrators  by  leave  of  the  pro- 
bate court  may  pay  from  the  personal  estate  in  their  hands  the  ex- 


16        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

awarded  to  be  paid  by  one  party  to  the  other,  execution 
may  issue." 

"  Sect.  45.  The  notice  which  may  be  required  by  law  in 
any  proceeding  in  a  probate  court  may  be  dispensed  with 
if  all  parties  who  are  entitled  thereto  assent  in  writing  to 
such  proceedings  or  waive  notice."  ^ 

"  Sect.  46.  In  appraisals  of  property,  the  judge  or  register 
may  api)oint  only  one  appraiser  if  in  his  opinion  the  nature 
of  the  {property  makes  it  advisable  so  to  do."^ 

"  Sect.  47.  Parties  to  probate  proceedings  may  select 
the  newspapers  in  which  the  notices  which  may  be  or- 
dered upon  their  petitions  shall  be  published  ;  but  the 
court  may  order  the  notice  to  be  published  in  one  other 
newspaper."  ^ 

"  Sect.  48.  A  paper  or  instrument,  discharging  a  claim 
or  purporting  to  acknowledge  the  performance  of  a  duty 
or  the  payment  of  money  for  which  an  executor,  adminis- 
trator, guardian,  or   trustee  is  chargeable  or  accountable 

penses  of  the  last  sickness  and  funeral  of  the  deceased,  the  expenses 
incurred  by  the  executor  named  in  the  will  of  the  deceased  person  in 
proving  the  same  in  the  probate  court,  or  in  sustaining  proof  thereof 
in  the  supreme  court,  and  also,  after  notice,  such  debts  due  from  the 
deceased  as  the  probate  court  may  approve. 

In  suits  brought  by  executors  and  trustees  for  instructions  made 
necessary  by  some  ambiguity  or  obscurity  in  a  will,  costs  are  allowed 
to  be  paid  out  of  the  estate.  Abbott  v.  Bradstreet,  3  Allen,  587  ; 
Wilcox  V.  Wilcox,  13  Allen,  256  ;  Bowditch  v.  Soltyk,  99  Mass.  136; 
Bartlett,  Petitioner,  163  Mass.  509,  522. 

1  P.  S.  c.  156,  §  37. 

«  St.  1897,  c.  147. 

3  St.  1885,  c.  235,  now  embodied  in  R.  L.  c.  8,  §  5,  cl.  13,  provided 
that  "  any  daily  or  weekly  periodical  devoted  exclusively  to  legal  news, 
which  has  been  published  in  the  Commonwealth  for  six  consecutive 
months,  shall  be  deemed  a  newspaper  for  the  insertion  of  legal  notices 
required  by  law,  if  the  publication  of  such  notice  in  such  periodical  is 
ordered  by  the  court." 


STATUTE  PROVISIONS  AS  TO  JUDGES  OF  PEOBATE.    17 

in  a  probate  court,  shall,  upon  the  request  of  a  party 
interested,  be  recorded  in  the  registry  of  said  court ; 
and  tlie  i-egisters  of  probate  in  their  respective  countries 
shall  enter,  record,  index,  and  certify  any  original  paper 
or  instrument  offered  as  aforesaid,  and  shall  receive  for 
such  services  the  like  compensation  as  registers  of  deeds 
would  be  entitled  to  demand  for  like  services.  Such  com- 
pensation shall  be  paid  by  the  person  who  leaves  such 
paper  or  instrument  for  record,  at  the  time  of  leav- 
ing it."  1 

"  Sect.  49.  The  register  of  probate  shall  make  without 
charge  one  certified  copy  of  all  wills  proved,  of  inventories 
returned,  of  accounts  settled,  of  partitions  of  land,  of  assign- 
ments of  dower  or  curtesy,  and  of  all  orders  and  decrees  of 
the  court,  and  shall  deliver  such  copies  upon  demand  to  the 
executor,  administrator,  guardian,  widow,  heir,  or  other 
party  principally  interested."  ^ 

A  copy  of  the  inventory  and  appraisal  of  every  estate, 
any  part  of  which  is  subject  to  the  tax  on  collateral  legacies 
and  successions,  or  if  the  estate  can  be  conveniently 
separated,  a  copy  of  the  inventory  and  appraisal  of  such 
part,  shall,  within  thirty  days  after  it  has  been  filed,  be  sent 
by  the  register  of  probate,  by  mail,  to  the  treasurer  and 
receiver-general  without  charge  therefor.^ 

JUDGES   OF   THE   PEOBATE   COURT. 
[Revised  Laws,  c.  164.] 

"  Sect.  1.  There  shall  be  one  judge  of  probate  and  in- 
solvency in  each  county  except  in  the  counties  of  Suffolk 
and  Middlesex." 

"  Sect.  2,   There  shall  be  two  judges  of  probate  and  in- 

1  P.  S.  c.  156,  §  39.  2  Ibid.  §  40.  8  R.  L.c.  15,  §  10. 

2 


18        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

solvency  for  each  of  the  counties  of  Suffolk  and  Middlesex. 
The  senior  judge  shall  be  tlic  first  judge  of  probate  and 
insolvency  in  each  county,  to  whom,  and  to  his  successors, 
all  bonds  which  are  required  by  law  to  be  given  to  the  judge 
of  the  probate  court  or  of  the  court  of  insolvency  for  said 
counties  shall  be  made  payable.  The  probate  court  and 
the  court  of  insolvency  for  said  counties  may  be  held  by 
one  or  both  of  the  judges  and,  when  so  held,  shall  have 
and  exercise  all  the  powers  and  jurisdiction  committed  to 
the  respective  courts.  The  judges  shall  so  arrange  the 
performance  of  their  duties  as  to  insure  a  prompt  and 
punctual  discharge  thereof.  Simultaneous  sessions  of  the 
courts  in  said  counties  may  be  held  if  the  public  convenience 
requires.  Citations,  orders  of  notice,  and  all  other  processes 
issued  by  the  register  of  probate  and  insolvency  for  either 
of  said  counties  shall  bear  teste  of  the  first  judge  of  said 
courts,  respectively.  A  deposit  or  investment  which  is 
made  in  the  name  of  the  judge  of  the  probate  court  or  the 
court  of  insolvency  for  either  of  said  counties  shall  be  made 
in  the  name  of  the  first  judge  of  the  court,  and  shall  be 
subject  to  the  order  of  the  court." 

"  Sect.  B.  A  judge  of  probate  and  insolvency,  before 
entering  upon  the  performance  of  his  official  duties,  in 
addition  to  the  oaths  prescribed  by  the  constitution,  shall 
take  and  subscribe  an  oath  tliat  he  will  faithfully  discharge 
said  duties  and  that  he  will  not,  during  his  continuance  in 
office,  directly  or  indirectly,  be  interested  in,  or  benefited 
by,  the  fees  or  emoluments  wliich  may  arise  in  any  suit  or 
matter  pending  in  either  of  the  courts  of  which  he  is  judge. 
Such  oath  shall  be  filed  in  the  registry  of  probate  of  the 
county  for  wdiich  he  is  appointed." 

"  Sect.  4.  The  judges  may  perform  each  other's  duties 
when  they  find  it  necessary  or  convenient." 


STATUTE    PROVISIONS    AS    TO    JUDGES    OF   PROBATE.        19 

"  Sect.  5.  If  a  judge  of  probate  and  insolvency  is  unable 
or  fails  from  any  cause  to  perform  his  duties  or  any  part 
of  them,  or  if,  in  his  opinion,  the  court  requires  the  assist- 
ance of  another  judge,  or  if  there  is  a  vacancy  in  the  office 
of  judge  of  probate  and  insolvency,  his  duties,  or  such  of 
them  as  he  may  request,  shall  be  performed  in  the  same 
county  by  the  judge  of  probate  and  insolvency  of  any  other 
county  who  may  be  designated  by  the  judge,  or,  in  case  of 
his  failure  so  to  designate,  who  may  be  designated  by  the 
register  of  probate  and  insolvency  from  time  to  time  as 
may  be  necessary ;  but,  unless  objection  is  made  by  an 
interested  party  before  the  decree  is  made,  any  case  may 
be  heard  and  determined  out  of  said  county  in  the  per- 
formance of  such  duties  by  such  other  judge,  who  may  send 
his  decree  to  the  registry  of  probate  for  the  county  in 
"which  the  case  is  pending.  Two  or  more  simultaneous 
sessions  of  the  court  may  be  held,  the  fact  being  so  stated 
upon  the  record."  ^ 

1  P.  S.  c.  158,  §  4;  St.  1892,  c.  337,  §  1 ;  St.  1894,  c.  377,  §  1  ;  St. 
1899,  c.  345,  §  1. 

Coffin  V.  Cottle,  9  Pick.  287. 

A  judge  of  probate  has  no  jurisdiction  over  a  will  containing  a 
devise  of  more  than  one  hundred  dollars  in  value  to  a  person  of  whose 
will  he  has  been  appointed  executor.     Bacon,  Appellant,  7  Gray,  391. 

Where  the  judge  was  a  debtor  to  the  estate,  though  the  debt  was 
wholly  secured  by  mortgage,  it  was  held  that  he  had  no  jurisdiction, 
and  that  the  probate  of  the  will  before  him  was  void.  Gay  v.  ]\Iinot, 
3  Cush.  .352. 

A  bequest  of  money  to  trustees,  to  be  devoted  to  the  use  and  benefit 
of  indigent  persons  in  certain  towns,  does  not  make  a  judge  of  probate 
who  is  an  inhabitant  of  one  of  those  towns  interested  in  the  probate^ 
of  the  will  which  contains  the  bequest.  Northampton  v.  Smith,  11 
Met.  390. 

Where  the  judge  had  a  valid  claim  against  the  estate  of  a  deceased 
person,  but  had  determined  in  his  own  mind  not  to  enforce  his  claim, 
and  exercised  jurisdiction  over  the  estate  by  granting  letters  of  admin- 
istration, it  was  held  that  he  was  nevertheless  interested  as  a  creditor 


20        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Sect.  G.  The  register  of  probate  and  insolvency  shall 
certify  on  his  records  and  to  the  auditor  of  the  common- 
wealth the  number  of  days  and  the  dates  upon  which,  and 
the  occasion  for  which,  the  duties  of  the  judge  of  probate 
and  insolvency  are  performed  by  such  judge  of  another 
county  under  the  provisions  of  the  preceding  section." 

"  Sect.  7.  The  judge  who  performs  any  duty  under  the 
provisions  of  section  five  shall,  except  as  provided  in  the 
following  section,^  receive  from  the  commonwealth,  in  addi- 
tion to  tlie  amount  otherwise  allowed  to  him  by  law,  fifteen 
dollars  for  each  day  that  he  performs  such  duties.  Such 
compensation,  so  far  as  it  is  for  services  rendered  for  any 
cause,  except  for  such  interest  as  prevented  the  perform- 

of  the  estate,  and  that  the  grant  of  administration  was  therefore  void 
for  want  of  jurisdiction,  Sigourney  v.  Sibley,  21  Pick.  101  ;  and  such 
void  administration  is  not  rendered  valid  by  the  circumstance  that 
exception  was  not  taken  to  his  jurisdiction  ;  ibid. 

The  appointment  of  a  special  administrator  on  the  estate  in  which 
the  judge  is  interested  is  void.     Sigourney  v.  Sibley,  22  Pick.  5U7. 

The  fact  that  the  judge  had  acted  as  the  agent  or  attorney  of  a  cred- 
itor, heir,  or  other  person  interested  in  an  estate,  although  such  action 
was  illegal,  does  not  make  him  interested  so  as  to  oust  him  of  his 
jurisdiction.     Cottle,  Appellant,  5  Pick.  483. 

A  judge  cannot  act  in  any  matter  in  which  a  near  relative  or  con- 
nection is  one  of  the  parties;  and  a  brother-in-law  or  father-in-law  is 
such  a  connection.  But  he  is  not  disqualified  by  the  remote  and  con- 
tingent interest  of  a  relative  who  is  not  a  party  to  the  proceeding. 
Hallu.  Thayer,  105  Mass.  219;  Aldrich,  Appellant,  110  Mass.  189. 

A  judge  who  has  written  a  will  is  disqualified  to  sit  upon  the  pro- 
bate of  it ;  but,  on  appeal,  it  may  be  proved  in  the  court  above. 
Moses  V.  Julian,  4.5  N.  H.  52. 

An  adjudication  by  a  judge,  while  absent  from  his  county,  upon  a 
matter  pending  therein,  is  invalid,  and  the  proceedings  may  be  dis- 
missed upon  a  petition  in  equity  to  the  supreme  court.  Lee  v.  AVells, 
15  Gray,  459.  But  this  has  not  been  the  law  since  the  enactment  of 
St.  1898,  c.  131.     See  R.  L.  c.  164,  §  9. 

1  This  is  evidently  an  error,  as  the  "  following  section  "  relates 
only  to  bonds. 


STATUTE  PROVISIONS  AS  TO  REGISTERS.        21 

ance  of  his  duties  by  the  regular  judge,  shall,  for  any 
excess  above  three  per  cent  of  his  salary,  be  deducted  from 
the  salary  of  the  judge  so  assisted."  ^ 

"  Sect.  8.  Bonds  which  are  required  to  be  given  to  the 
judge  shall  be  given,  in  case  of  vacancy  in  the  office  of 
judge,  to  the  acting  judge,  and  to  his  successors  in  office, 
and  all  business  shall  be  done  in  his  name  or  in  the  name  of 
the  probate  court  or  the  court  of  insolvency  for  the  county 
in  which  the  case  or  matter  is  pending ;  but  bonds  may  be 
approved,  and  other  acts,  which  are  required  to  be  done  or 
certified  by  the  judge,  may  be  approved,  done,  or  certified 
by  the  acting  judge."  ^ 

"  Sect.  9.  The  judge  of  probate  and  insolvency  may,  in 
cases  in  which  a  decree,  order,  or  allowance  can  be  made 
without  a  hearing,  and  in  all  cases  after  a  hearing,  make 
such  decree,  order,  or  allowance,  and  approve  bonds,  at  any 
place  in  the  commonwealth,  with  the  same  effect  as  if  so 
made  and  approved  in  their  respective  counties  ;  and  if 
such  judge,  under  the  provisions  of  section  five,  acts  in  a 
county  other  than  his  own,  such  decrees,  orders,  or  allow- 
ances may  be  signed,  and  bonds  approved,  outside  of  the 
county  in  which  he  niay  have  been  designated  to  act.  The 
provisions  of  this  section  shall  not  affect  the  validity  of  any 
decree,  order,  or  allowance  which  was  signed  or  bond  which 
was  approved  prior  to  the  third  day  of  March  in  the  year 
eighteen  hundred  and  ninety-eight."  ^ 

REGISTERS   OP  THE   PROBATE   COURT. 

"Sect.  10.  Every  register  of  probate  and  insolvency, 
before  entering  upon  the  performance  of  his  official  duties, 

1  St.  1892,  c.  337,  §  3 ;  St.  1894,  c.  377,  §  3 ;   St.  1899,  c.  345,  §  3. 
a  P.  S.  c.  158,  §  5. 
8  St,  1898,  c.  131. 


22        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

in  addition  to  the  oaths  prescribed  by  the  constitution, 
shall  take  and  subscribe  an  oath  that  he  will  faithfully 
discharge  said  duties,  and  that  he  will  not,  during  his  con- 
tinuance in  office,  directly  or  indirectly,  be  interested  in,  or 
benefited  by,  the  fees  or  emoluments  which  may  arise  in 
any  suit  or  matter  pending  in  either  of  the  courts  of  which 
he  is  register.  Such  oath  shall  be  filed  in  the  registry  of 
probate  of  the  county  for  which  be  is  elected."  ^ 

"  Sect.  11.  He  shall  give  bond  to  the  treasurer  and 
receiver-general  for  the  faithful  performance  of  his  official 
duties  in  a  sum  not  less  than  one  thousand  nor  more  than 
ten  thousand  dollars,  as  may  be  ordered  by  the  judge, 
with  one  or  more  sureties  who  shall  be  approved  by 
him."  2 

"  Sect.  12.  The  register  shall  have  the  care  and  custody 
of  all  books,  documents,  and  papers  which  appertain  to  the 
courts  of  which  he  is  register,  or  which  are  deposited  with  the 
records  of  insolvency  or  filed  in  the  registry  of  probate,  and 
shall  carefully  preserve  them  and  deliver  them  to  his  succes- 
sor. He  may,  with  the  approval  of  the  county  commission- 
ers and  at  the  expense  of  the  county,  cause  copies  of  the 
indexes,  or  new  indexes,  to  the  records  which  are  in  his 
custody,  to  be  printed  and  to  be  sold  at  a  price  which 
shall  be  not  less  than  the  cost  of  paper,  printing,  and  bind- 
ing. He  shall  perform  such  other  duties  which  appertain 
to  his  office  as  may  be  required  by  law  or  prescribed  by  the 
judge."  ^ 

"  Sect.  13.  He  may  at  any  time  receive  and  place  on  file 
petitions  and  applications  to  the  probate  court  or  the  court 
of  insolvency,  and  may  issue  orders  of  notice  and  citations 

1  P.  S.  c.  158,  §  6. 

2  Ibid.  §  7. 

8  Ibid.  §  8 ;  St.  1900,  c.  180. 


STATUTE    PROVISIONS    AS    TO    REGISTERS.  23 

in  like  manner  and  with  like  effect  as  if  they  were  issued 
by  the  judge ;  but  if  the  judge  considers  that  such  notice 
is  insufficient,  he  may  order  further  notice."  ^ 

"  Sect.  14.  He  may  issue  process  of  attaclimeut  and  of 
execution,  and  all  other  processes  and  all  warrants,  letters 
and  licenses  which  may  be  necessary  to  carry  into  effect 
any  order  or  decree  of  the  courts,  and  they  may  run  into 
any  county  and  shall  be  executed  and  obeyed  throughout 
the  commonwealth.  He  may  appoint  appraisers  to  make 
any  inventory  which  may  be  required  to  be  returned  to  said 
courts."  2 

"  Sect.  15.  He  shall  furnish  copies  of  records  or  other 
papers  in  his  custody  and  shall  collect  therefor  the  fees 
provided  by  law."^ 

"  Sect.  16.  He  shall,  on  the  first  Monday  of  January, 
April,  July  and  October,  in  each  year,  account  for  and  pay 
over  to  the  treasurer  and  receiver-general  all  fees  and 
compensation  which  have  been  received  by  him  otherwise 
than  by  salary."  * 

"  Sect.  17.  The  judges  for  the  counties  of  Bristol,  Essex, 
Franklin,  Hampden,  Hampshire,  Middlesex,  Norfolk,  Suf- 
folk, and  Worcester  may  each  appoint  an  assistant  register 
of  probate  and  insolvency  for  his  county,  who  shall  hold 
office  for  three  years  unless  sooner  removed  by  the  judge. 
Such  assistant  register  in  Bristol,  Hampden,  and  Hamp- 
shire may  be  a  woman.  Before  entering  upon  the  per- 
formance of  his  duties,  an  assistant  register  shall  take 
the  oaths  prescribed  by  the  constitution,  and  shall  give 
bond  to  the  treasurer  and  receiver-general  for  the  faithful 

1  P.  S.  c.  158,  §  9. 

2  Ibid.  §  10 ;  St.  1894,  c.  199. 

3  St.  1893,  c.  409,  §  2. 
*  Ibid.  §  3. 


24        PKOCEEDINGS  IN  THE  PROBATE  COURTS, 

performance  of  his  official  duties,  in  a  sum  not  less  than 
five  hundred  nor  more  than  five  thousand  dollars,  as  may 
be  ordered  by  the  judge,  with  one  or  more  sureties  who 
shall  be  approved  by  him."  ^ 

"  Sect.  18.  The  register  of  probate  and  insolvency  for 
the  county  of  Suffolk  may,  subject  to  the  approval  of  the 
judges  of  probate  and  insolvency  for  said  county,  appoint 
a  clerk,  and  may  remove  him  at  his  pleasure."  ^ 

"  Sect.  19.  The  register  shall  forthwith  report  to  the 
secretary  of  the  commonwealth  a  vacancy  in  the  office  of 
assistant  register,  and  the  name,  residence,  and  date  of  ap- 
pointment of  the  person  who  may  have  been  appointed  to 
fill  such  vacancy."  ^ 

"  Sect.  20.  An  assistant  register  shall  perform  his  duties 
under  the  direction  of  the  register,  and  shall  pay  over  to 
him  all  fees  and  amounts  received  as  such  assistant.  He 
may  authenticate  papers  and  perform  such  other  duties 
as  are  not  performed  by  the  register.  In  case  of  the 
absence,  neglect,  removal,  resignation,  or  death  of  the 
register,  the  assistant  may  complete  and  attest  any  rec- 
ords remaining  unfinished  and  may  act  as  register  until 
a  new  register  is  qualified  or  until  the  disability  is 
removed."  ^ 

"  Sect.  21.  The  judges  shall  semi-annually  inspect  the 
doings  of  the  registers  of  their  courts,  and  see  that  the 
records  and  files  are  made  up  seasonably  and  kept  in  good 
order  ;  and  if  the  records  are  left  incomplete  for  more  than 
six  consecutive   months,  such   neglect,  unless  caused   by 

1  P.  S.  c.  158,  §  11 ;  St.  1893,  c.  151,  §  1 ;  St.  1898,  c.  234  ;  St. 
1899,  c.  191,  §  1;  St.  1900,  c.  144,  §  1. 

2  P.  S.  c.  158,  §  12. 
«  Ibid.  §  13. 

*  Ibid.  §  14. 


STATUTE    PROVISIONS   AS   TO   REGISTERS,   ETC,  25 

illness  or  casualty  shall  be  adjudged  a  forfeiture  of  the 
bond  of  the  register."  ^ 

"  Sect.  22.  In  case  of  any  neglect  which  causes  a  for- 
feiture of  the  bond  of  the  register  or  assistant  register,  the 
judge  shall  forthwith  give  notice  thereof  in  writing  to  the 
treasurer  and  receiver-general,  who  shall  thereupon  cause 
the  bond  to  be  put  in  suit;  and  the  sum  recovered  in  such 
suit  shall  be  applied  to  the  expense  of  mailing  up  the 
deficient  records  under  the  direction  of  the  court  in  whoso 
records  the  deficiency  happens,  and  the  surplus,  if  any, 
shall  be  carried  into  the  account  of  such  treasurer."  ^ 

"  Sect.  23,  The  provisions  of  the  two  preceding  sec- 
tions shall  not  exempt  registers  or  assistant  registers 
from  an  action  for  any  other  breach  of  their  bond,  or 
from  other  liability  for  neglect  or  misconduct  in  their 
office,"  3 

"  Sect,  24.  If  upon  the  death,  resignation,  removal,  or 
absence  of  the  register,  there  is  no  assistant  register,  or  if 
he  also  is  absent,  the  judge  shall  appoint  a  temporary 
register,  who  shall  act  until  a  register  is  appointed,  or 
elected  and  qualified,  or  until  the  disability  is  removed. 
Such  temporary  register  shall  be  sworn  before  the  judge, 
and  a  certificate  thereof,  with  his  appointment,  shall  be 
recorded  with  the  proceedings  of  each  court  in  which 
he  acts."^ 

"  Sect,  25.  No  judge,  register,  or  assistant  register  of 
probate  and  insolvency,  or  any  person  who  is  employed  in 
the  registry  of  probate  and  insolvency  in  any  county 
shall  be  interested  in,  or  be  benefited  by,  the  fees  or 
emoluments  which  may  arise  in  any  matter  pending  before 
the  probate  court  or  court  of  insolvency  of  such  county ; 

1  P.  S.  c.  158,  §  15,  2  Ibid.  §  16. 

»  Ibid,  §  17.  *  Ibid.  §§  19,  20. 


26        PROCEEDINGS  IN  THE  PKOBATE  COURTS. 

nor  shall  he  act  as  counsel  or  attorney,  either  in  or  out 
of  court,  in  any  matter  pending  before  said  courts  or  in 
an  appeal  therefrom  ;  nor  shall  he  be  appointed  executor, 
administrator,  guardian,  commissioner,  appraiser,  or  as- 
signee of  or  upon  an  estate  within  the  jurisdiction  of  such 
courts  ;  nor  shall  he  be  interested  in  the  fees  or  emoluments 
arising  from  any  of  said  trusts ;  and  no  judge  shall  be  re- 
tained or  employed  as  counsel  or  attorney,  either  in  or  out 
of  court,  in  any  suit  or  matter  which  may  depend  on  or 
in  any  way  relate  to  a  sentence,  decision,  warrant,  order, 
or  decree  made  or  passed  by  him ;  nor  for  or  against 
an  executor,  administrator,  or  guardian  appointed  within 
his  jurisdiction,  in  any  action  or  suit  brought  by  or  against 
the  executor,  administrator,  or  guardian  as  such  ;  nor  in 
any  action  or  suit  relating  to  the  official  conduct  of  such 
party  ;  nor  for  or  against  a  creditor,  debtor,  or  assignee, 
in  a  cause  or  matter  which  arises  out  of  or  is  connected 
with  any  proceedings  before  him ;  nor  in  an  appeal  in 
such  cause  or  matter."  ^ 

"  Sect.  26.  If  a  judge  or  register  of  probate  desires  to  be 
appointed  guardian  of  his  minor  child,  who  is  an  inhabitant 
of  or  resides  in  the  same  county,  such  appointment  may 
be  made,  and  all  subsequent  proceedings  in  regard  thereto 
had,  in  the  probate  court  of  the  most  ancient  adjoining 
county."  2 

SESSIONS   OF   THE   COURTS. 
[Revised  Laws,  c.  162,  §§  5.5-59.] 

"  Sect.  55.     The  judge  of  a  probate  court  may  keep  order 

in  court,  and  may  punish  any  contempt  of  his  authority."  ^ 

"  Sect.  56.    The  probate  court  in  each  county  shall  always 

1  P.  S.  c.  158,  §  21.  2  Ibid.  §  22.  8  P.  S.  c.  156,  §  45. 


STATUTE  PROVISIONS  AS  TO  COURT  SESSIONS,  ETC.   27 

be  open,  except  on  the  Lord's  day  and  legal  holidays,  for 
all  hearings,  for  matters  in  equity,  for  proceedings  in  con- 
tempt, and  for  making  orders  and  decrees  in  all  matters 
before  them ;  but  the  times  of  all  hearings  shall  be  discre- 
tionary with  the  judges  of  said  courts."  ^ 

"  Sect.  57.  The  judge  of  a  probate  court  may  adjourn  the 
court  as  occasion  requires ;  and  if  he  is  absent  at  the  time 
appointed  for  holding  a  court,  the  register  shall  adjourn  it 
as  he  may  consider  necessary,  or  as  the  judge  may  order. 
The  register  may  also  adjourn  the  court  when  there  is  a 
vacancy  in  the  office  of  judge." 

"  Sect.  58.  If  the  regular  time  for  holding  a  probate 
court  occurs  on  a  legal  holiday,  or  on  the  day  of  an  annual 
state  election,  the  court  shall  be  held  on  the  next  secular 
day  thereafter;  on  which  day  all  notices,  citations,  orders, 
and  other  papers  made  returnable  at  said  regular  time, 
shall  be  returnable.  The  proceedings  thereon  shall  be  of 
the  same  A'alidity  as  if  the  notices,  citations,  orders,  and 
other  papers  had  been  made  so  returnable."  ^ 

"  Sect.  59.  No  court  shall  be  held  by  adjournment  or 
otherwise  unless  the  register,  assistant  register,  or  a  tem- 
porary register  is  present."  ^ 

ATTORNEYS    AND    PRACTICE    IN   PROBATE    COURTS. 

A  duly  authorized  attorney-at-law  may  enter  his  appear- 
ance as  attorney  for  the  party  represented  by  him  in  any 
proceeding  in  a  probate  court,  and  all  processes  and  notices 
which  may  be  served  upon  him  shall  have  the  same  force 
and  effect  as  if  served  upon  the  party  whom  he  represents.^ 

1  St.  1895,  c.  215;  St.  1901,  c.  61. 

a  St.  1884,  c.  141. 

8  P.  S.  c.  1-56,  §  47. 

4  R.  L.  c.  162,  §  40 ;  St.  1890,  c.  420,  §  1. 


28  PROCEEDINGS   IN    THE    PROBATE    COURTS. 

The  supreme  judicial  court  and  the  probate  courts  shall 
make  rules  requiring  notice  of  any  hearing,  motion,  or  other 
proceeding  before  said  courts  to  be  given  to  parties  inter- 
ested or  to  the  attorney  who  has  entered  an  appearance  for 
them.^ 

1  R.  L.  c.  162,  §  30 ;  St.  1890,  c.  420,  §  2. 


CHAPTER  II. 

PROBATE  OF   WILLS. 

The  probate  of  a  will  is  necessary  to  establish  its  due 
execution.!  All  questions  as  to  the  personal  capacity  of 
the  testator,  the  signing  of  the  will  by  him,  and  the  attes- 
tation of  the  witnesses,  must  be  determined  by  the  probate 
court,  or,  on  appeal,  by  the  supreme  court  of  probate. 
Such  questions  cannot  be  determined  in  the  courts  of 
common  law,^  and  the  decree  of  the  probate  court  allowing 
or  disallowing  a  will  is  conclusive,^  unless  appealed  from; 

1  A  will  disposing  of  lands  may  be  admitted  to  probate  at  any  time 
after  tlie  death  of  the  testator.  Haddock  v.  Boston  &  Maine  R.  R., 
146  Mass.  155. 

2  Dublin  V.  Chadbourn,  16  Mass.  433;  Parker  v.  Parker,  11  Cush. 
519  ;  Boston  v.  Robbins,  126  Mass.  388. 

3  Shores  r.  Hooper,  153  Mass.  228  ;  Harris  v.  Starkey,  176  ]\Iass.  445. 
A  decree  allowing  a  will  or  adjudicating  the  intestacy  of  the  estate 

of  a  deceased  person  in  any  court  in  this  commonwealth  having  juris- 
diction thereof  shall,  after  two  years  from  the  rendition  of  such  de- 
cree, or,  if  proceedings  for  a  reversal  thereof  are  had,  after  two  years 
from  the  establishment  of  such  decree,  be  final  and  conclusive  in 
favor  of  purchasers  for  value,  in  good  faith,  without  notice  of  any  ad- 
verse claim,  of  any  property,  real  or  personal,  from  devisees,  legatees, 
heirs,  executors,  administrators,  or  guardians,  and  in  favor  of  execu- 
tors, administrators,  trustees,  and  guardians  who  have  settled  their  ac- 
counts in  due  form,  and  have  in  good  faith  disposed  of  the  assets  of 
the  estate  in  accordance  with  law;  and  also  in  favor  of  persons  who 
have  in  good  faith  made  payments  to  executors,  administrators,  trus- 
tees, or  guardians.  If  a  subsequent  decree  reverses  or  qualifies  the 
decree  so  originally  rendered,  heirs,  devisees,  legatees,  and  distributees 
shall  be  liable  to  a  subsequent  executor,  administrator,  or  other  per- 
son found  entitled  thereto,  for  any  proceeds  or  assets  of  the  estate 
received  by  them  under  the  former  decree,  and  in  such  case  proceeds 


30        PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

it  cannot  be  examined  collaterally  in  any  other  court, 
except  on  a  question  of  jurisdiction.  But  until  the  will 
be  admitted  to  probate,  it  is  legally  inoperative.  Neither 
real  nor  personal  estate  will  pass  by  it,  for  it  cannot  be 
used  as  evidence  of  title. ^ 

WHO   MAY   MAKE   A   WILL. 

Every  person  of  full  age  and  sound  mind  may,  by  his  last 
will  in  writing,  signed  by  him  or  by  a  person  in  his  presence 
and  by  his  express  direction,  and  attested  and  subscribed 
in  his  presence  by  three  or  more  competent  witnesses,  dispose 
of  his  property,  real  and  personal,  except  an  estate  tail,  and 
except  as  provided  in  chapters  one  hundred  and  thirty-one, 
one  hundred  and  thirty-two,  and  one  hundred  and  thirty-five, 
and  in  section  one  of  chapter  one  hundred  and  fifty- 
three  of  the  Revised  Laws.  A  married  woman,  in  the  same 
manner  and  with  the  same  effect,  may  make  a  will.^ 

of  real  estate  shall  be  treated  as  real  estate.  The  pi-ovisioiis  of  this 
section  shall  not  make  an  adjudication  of  the  fact  of  death  conclusive. 
R.  L.  c.  136,  §  3;  Gale  v.  Nickerson,  Hi  Mass.  415. 

^  R.  L.  c.  135,  §  7;  Shumway  v.  Holbrook,  1  Pick.  114  ;  Ilutchius 
V.  State  Bank,  12  Metcalf,  424 ;  Loring  v.  Mass.  Horticultural  Society, 
171  Mass.  401. 

2  R.  L.  0.  135,  §  1. 

If  a  court  having  jurisdiction  has  entered  a  decree  that  a  married 
woman  has  been  deserted  by  her  husband,  or  is  living  apart  from  him 
for  justifiable  cause,  she  may  convey  her  real  property  in  the  same 
manner  and  with  the  same  effect  as  if  she  were  sole ;  and  the  surviv- 
ing husband  shall  not  be  entitled  under  the  provisions  of  section  16  of 
chapter  135  of  the  Revised  Laws  to  waive  the  provisions  of  a  will  made 
by  her.     R.  L.  c.  153,  §  36. 

A  surviving  husband,  except  as  provided  in  R.  L.  c.  153,  §  36,  or 
the  widow  of  a  deceased  person,  at  any  time  within  one  year  after  the 
probate  of  the  will  of  such  deceased,  may  file  in  the  registry  of  probate 
a  writing  signed  by  him  or  her  waiving  any  provisions  that  may 
have  bp'^n  made  by  the  will  for  him  or  her,  or  claiming  such  portion 
of  the  estate  of  the  deceased  as  he  or  she  would  have  taken  if  the  de- 
ceased had  died  intestate,  and  he  or  she  shall  thereupon  take  the  same 


PROBATE   OF  WILLS.  31 

Since  the  Revised  Laws  went  into  effect  a  married 
woman  has  the  same  rights  as  her  husband  in  regard  to 
making  a  will  and  is  subject  to  the  same  restrictions. 
Husband  and  wife  are  put  on  the  same  basis  as  to  curtesy 
and  dower  and  as  to  inheritance. 

The  power  to  dispose  of  property  by  will  depends  wholly 
on  statute.     Brettun  v.  Fox,  100  Mass.  234,  235. 

THE   FACTS    TO    BE    PROVED    IN    SUPPORT   OF   THE   WILL. 

The  party  seeking  the  probate  of  the  will  must  prove 
affirmatively, 

That  the  will  was  signed  by  the  testator,  or  by  some 
person  in  his  presence  and  by  his  express  direction ; 

That  tlie  will  was  attested  and  subscribed  in  the  presence 
of  the  testator  by  three  or  more  competent  witnesses ;  and 

That  the  testator,  at  the  time  wdien  the  will  was  exe- 
cuted, was  of  full  age  ^  and  sound  mind. 

All  these  facts  must  be  proved.  Proof  of  any  one  or 
more  of  them  is  not  sufficient,  unless  all  are  established. 

Section  I. 

AS   TO   the   signing    BY   THE   TESTATOR. 

The  statute  provides  that  no  will  shall  be  effectual  to 
pass  or  charge,  or  in  any  way  to  affect  any  estate,  real  or 

portion  of  the  property  of  the  deceased  as  he  or  she  would  have  taken 
if  the  deceased  had  died  intestate.  R.  L.  c.  135,  §  16.  Athertou  v. 
Corliss,  101  Mass.  40;  Pollock  v.  Learned,  102  Mass.  49;  Shannon 
V.  AVhite,  109  Mass.  146  ;  Burke  v.  Colbert,  144  Mass.  160 ;  Johnson  v. 
Williams,  152  Mass.  415  ;  Fiske  r.  Fiske,  173  Mass.  413. 

^  Full  age  is  reached  on  the  d<jy  next  preceding  the  anniversary  of 
the  person's  birth.  Thus,  if  he  was  born  on  the  second  day  of  Jan- 
uary, 1870,  he  became  of  age  on  the  first  day  of  January,  1891  ;  and 
as  fractions  of  a  day  are  not  recognized  by  law,  his  full  age  was  reached 
on  the  first  instant  of  the  latter  day. 


32        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

personal,  unless  it  is  in  writing  and  signed  by  the  testator, 
or  by  some  person  in  his  presence  and  by  his  express 
direction,  and  attested  and  subscribed  in  his  presence  by 
three  or  more  competent  witnesses.^ 

Questions  as  to  the  signing  by  the  testator,  and  as  to 
the  attestation  of  the  witnesses,  have  been  frequently 
considered  and  determined  by  the  courts. 

It  is  not  necessary  that  the  testator's  name  be  signed 
at  the  end  of  the  will,  though  such  is  the  common  and 
advisable  practice.  Where  a  will  commenced  in  the 
common  form,  "  I,  A.  B.,  do  make,"  etc.,  the  whole  will 
being  in  the  testator's  handwriting,  it  was  held  to  be 
sufficiently  signed,  though  there  was  no  formal  signature.^ 
The  signature,  whatever  may  be  its  local  position,  must 
have  been  made  with  the  intention  of  authenticating  the 
entire  instrument.  One  signature  is  sufficient,  though 
the  will  be  contained  in  several  pages  or  sheets,  and  even 
when  the  testimonium  clause  referred  to  the  preceding 
sheets  as  severally  signed,  and  the  will  was  in  fact  signed 
at  the  end  only,  the  signing  was  held  sufficient,  it  being 
evidently  the  testator's  intention  that  his  signature  should 
apply  to  the  whole.^ 

The  testator  may  sign  his  will  by  making  his  "  mark  ;  "  * 

1  R.  L.  c.  135,  §§  1,  7.  To  this  rule  exceptions  are  made  by  stat- 
ute in  the  following  cases  :  Wills  made  in  conformity  with  the  law 
existing  at  the  time  of  their  execution;  wills  made  out  of  the  state 
which  are  valid  under  the  la\AS  of  the  state  or  country  in  which  they 
were  made  ;  and  the  nuncupative  wills  of  soldiers  and  mariners.  Ibid. 
§§  4,  5,  6. 

2  Grayson  r.  Atkinson,  2  Ves.  454 ;  Coles  v.  Trecothick,  9  Ves. 
249;  Adams  v.  Field,  21  Vt.  256. 

8  Winsor  v.  Pratt,  5  Moore,  484  ;  Ela  v.  Edwards,  16  Gray,  91  ; 
Newton  v.  Seaman's  Friend  Society,  130  Mass.  91. 

*  Nickerson  v.  Buck,  12  Cush.  332.  Under  the  English  statute 
(1  Vict.  c.  26,  §  9),  which  requires  the  will  to  be  signed  by  the  testator 
or  by  some  person  in  bis  presence  and  by  his  direction,  and  the  sig- 


EXECUTION   OF   WILLS.  33 

and  the  fact  that  lie  was  not  able  to  write  his  name  is 
not  required  to  be  proved.^ 

The  testator's  name  may  be  written  by  some  other  per- 
son, but  it  must  be  done  in  his  presence  and  by  his  express 
direction ;  and  the  fact  that  the  will  was  signed  in  that 
manner  should  be  stated  in  the  attestation  clause.  Where 
the  testator's  signature  was  made  by  another  person  guid- 
ing his  hand,  with  his  consent,  and  he  afterwards  acknowl- 
edged it,  the  signing  was  held  to  be  the  act  of  the  testator, 
and  sufficient.2 

It  is  not  essential  that  the  very  act  of  signing  by  the 
testator  should  be  seen  by  the  witnesses.  The  statute  does 
not  require  him  to  sign  in  their  presence.  His  acknowl- 
edgment that  the  name  signed  to  the  instrument  is  his, 
accompanied  with  a  request  that  the  person  to  whom  the 
acknowledgment  is  made  should  attest  it  as  a  witness, 
is  sufficient.  The  acknowledgment  of  his  signature  need 
not  be  in  express  words.  His  declaration  that  the  instru- 
ment is  his,  his  name  being  then  signed  to  the  paper,  is 
enough  ;  any  form  of  expression  implying  that  the  will  has 
been  signed  by  him  is  sufficient.^  In  the  case  of  White  v. 
The  British  Museum,^  where  the  will  was  entirely  in  the 

nature  to  be  made  or  acknowledged  by  the  testator  in  the  presence  of 
witnesses,  it  was  held,  that  a  will  signed  by  a  mark,  without  the  tes- 
tator's name  appearing,  was  sufficiently  signed,  the  will  being  identi- 
fied aliunde,  hi  re  Bryce,  2  Curteis,  325.  Where  the  maiden  name 
of  the  testatrix  was  written  against  her  mark  instead  of  her  real  name, 
by  which  she  was  described  in  the  will,  it  being  a  clerical  error,  the  will 
was  admitted  to  probate.     In  the  Goods  of  Clarkes,  1  Swa.  &  Tr.  22. 

1  Baker  i-.  Dening,  8  Adol.  &  Ell.  94. 

2  Stevens  v.  Van  Cleve,  4  Wash.  C.  C.  262. 

8  Tilden  v.  Tilden,  13  Gray,  110;  Nickerson  v.  Buck,  12  Cush,  332  ; 
Hogan  V.  Grosvenor,  10  Met.  54;  Dewey  v.  Dewey,  1  Met.  349;  Hall 
V.  Hall,  17  Pick.  373;  Ela  v.  Edwards,  16  Gray,  93. 

*  6  Bing.  310  ;  and  see  Wright  ;;.  Wright,  7  Bing.  457. 

3 


34        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

testator's  handwriting,  the  testator  merely  requested  the 
witnesses  to  attest  it ;  neither  of  them  saw  his  signature, 
and  only  one  of  thein  knew  what  the  instrument  was;  and 
the  execution  was  held  to  be  sufficient.^  Tindal,  C.  J.,  said, 
"  When  we  find  the  testator  knew  this  instrument  to  be 
his  will;  that  he  produced  it  to  the  three  persons,  and 
asked  them  to  sign  the  same  ;  that  he  intended  them  to 
sign  it  as  witnesses  ;  that  they  subscribed  their  names  in 
his  presence,  and  returned  the  same  identical  instrument 
to  him,  —  we  think  the  testator  did  acknowledge  in  fact, 
though  not  in  words,  to  the  three  witnesses,  that  the  will 
was  his."  This  acknowledgment  need  not  be  made  to  all 
the  witnesses  at  the  same  time,  but  is  sufficient  if  made 
separately  to  each  witness  at  different  times  and  places.^ 

No  formal  publication  of  the  will  by  the  testator  is 
necessary.  In  a  large  majority  of  cases,  the  testator 
declares  in  the  presence  of  the  subscribing  witnesses  that 
the  instrument  executed  by  him  is  his  will,  and  the  fact 
that  such  a  declaration  was  made  is  recited  in  the  attesta- 
tion clause  and  proved  in  the  probate  court.  But  such 
declaration  is  not  necessary.  There  may  exist  very  excel- 
lent reasons  why  the  testator  should  not  wish  to  disclose, 
and  why  the  law  should  not  require  him  to  disclose,  the 
fact  that  he  has  made  a  will  at  all ;  ^  either,  as  Swinburne 

^  It  is  not  necessary  to  the  validity  of  a  will  that  it  be  read  by 
or  to  the  person  executing  it ;  it  is  sufficient  if  the  court  is  satisfied, 
by  competent  evidence,  that  the  contents  of  the  will  were  known  to 
or  approved  by  the  person  executing  it,  at  the  time  it  was  executed  as 
a  will.     Worthington  v.  Kleram,  144  Mass.  167. 

An  instrument  which  contains  a  power  of  attorney  inte?-  vii-os  may 
also  be  a  codicil  to  a  will.     Stewart  v.  Stewart,  177  Mass.  493. 

2  Hogau  V.  Grosvenor,  18  Met.  54;  Dewey  v.  Dewey^  1  Met.  349; 
Ela  V.  Edwards,  16  Gray,  93. 

»  Osborn  v.  Cook,  11  Gush.  532. 


EXECUTION   OF   WILLS.  35 

says,  "  because  the  testator  is  afraid  to  offend  such  persons 
as  do  gape  for  greater  be(]uests  than  either  they  have 
deserved,  or  the  testator  is  willing  to  bestow  upon  tliera ; 
(lest  they,  peradventure,  understanding  thereof  would  not 
suffer  him  to  live  in  quiet :)  or  else  he  should  overmuch 
encourage  others,  to  whom  he  meant  to  be  more  beneficial 
than  they  expected  ;  (and  so  give  them  occasion  to  be  more 
negligent  husbands  or  stewards  about  their  own  affairs 
than  otherwise  they  would  have  been  if  they  had  not  ex- 
pected such  a  benefit  at  the  testator's  hands  or  for  some 
other  considerations)."^ 

It  must  of  course  appear  that  the  testator  knew  at  the 
time  he  executed  the  instrument  that  it  was  his  will. 
Such  knowledge,  however,  need  not  ordinarily  be  proved 
by  direct  evidence ;  it  may  be  inferred  from  the  testator's 
observance  of  the  formalities  of  execution  required  by  the 
statute.  It  will  generally  be  presumed  on  proof  of  the 
execution  that  he  knew  the  contents  of  the  instrument.  ^ 
But  if  the  testator  was  incapable  of  reading  from  blind- 
ness, physical  weakness,  ignorance,  or  other  cause,  it  is 
incumbent  on  the  party  offering  the  will  for  probate  to 
meet  such  facts  by  evidence  that  the  will  was  read  to  the 
testator  previous  to  its  execution,  or  that  the  contents 
were  otherwise  known  to  him.^ 

A  will  may  be  properly  executed'  without  a  seal,  none 
being  required  by  statute. 

1  Swinburne,  Pt.  1,  §  11.  In  Trimmer  v.  Jackson  (4  Burn's  Eccl. 
Law,  9th  ed.  102),  the  witnesses  were  deceived  by  the  execution,  being 
led  to  believe  that  the  instrument  was  a  deed,  not  a  will  ;  and  it  was 
adjudged  a  sufficient  execution. 

2  Worthington  v.  Klemra,  144  Mass.  167. 

'  Swett  r.  Boardman,  1  Mass.  262  ;  Pettes  v.  Brigham,  10  N.  H. 
614;  2  Greenl.  Ev.  §  675.    See  Gerrish  v.  Nason,  22  Maine,  438. 


36        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  statute  prohibiting  the  transaction  of  business  on 
Sunday  does  not  apply  to  the  execution  of  wills,  and  a  will 
executed  on  that  day  is  valid.^ 

Section  II. 

AS   TO    THE    ATTESTATION   BY   THE   WITNESSES. 

The  subscribing  witnesses  must  subscribe  the  will  in 
the  presence  of  the  testator.^  The  object  of  the  rule  is  to 
enable  him  to  have  ocular  evidence  of  the  identity  of  the 
instrument  which  they  attest.  The  mere  corporal  pres- 
ence of  the  testator  is  not  enough.  He  must  be  conscious 
of  their  act,  and  in  a  position  where  he  can  see  it.  If, 
therefore,  after  he  has  signed  the  will  and  before  the  wit- 
nesses have  subscribed  it,  he  falls  into  a  state  ^f  insensi- 
bility, their  attestation  is  not  sufficient.  ^  Nor  will  it  be 
sufficient  if  they  subscribe  in  a  secret  and  clandestine 
manner,  although  in  the  same  apartment.*  It  is  not 
essential  that  the  testator  actually  see  the  signing;  it  is 
enough  if  the  situation  of  the  respective  parties  be  such 
that  he  may  see  it,  and  this  is  enough,  even  if  the  wit- 
nesses subscribe  in  another  room.^  Where  the  testator  lay 
in  bed,  and  the  witnesses  went  with  the  will  through  a 
short  passage  into  another  room,  and  subscribed  their 
names  on  a  table  in  the  middle  of  that  room,  both  doors 
being   open,  so  that   the  testator  might  have  seen   them 

^  Bennett  v.  Brooks,  9  Allen,  118;  Donovan  v.  McCarty,  155  Mass. 
543,  546  ;  George  v.  George,  47  N.  H.  27. 

2  See  Chase  v.  Kittredge,  11  Allen,  49;  Marshall  v.  Mason,  176 
Mass.  216. 

8  Right  V.  Price,  1  Doug.  241. 

4  Longford  v.  Eyre,  1  P.  Wms.  740. 

5  Dewey  v.  Dewey,  1  Met.  340 ;  Riggs  v.  Riggs,  135  Mass.  238 ;  Ray* 
mond  V.  Wagner,  178  Mass.  315. 


WITNESSING   OF   WILLS.  37 

subscribe  if  he  would,  though  there  was  no  proof  that  he 
did  see  their  act,  the  attestation  was  held  sufficient.  ^  A 
blind  man  executing  his  will  should  be  sensible  of  the 
presence  of  the  witnesses  through  his  remaining  senses.  ^ 

On  the  other  hand,  though  the  witnesses  are  in  the 
same  room  with  the  testator,  it  is  not  enough,  if  his  view 
of  the  proceedings  is  necessarily  obstructed.  Where  the 
testator  was  in  bed  in  a  room  from  one  part  of  which  he 
might,  by  inclining  his  head  into  the  passage,  have  seen 
the  witnesses  subscribe  the  will,  but  could  not  see  them 
in  the  position  in  w^hich  he  actually  was,  the  attestation 
was  held  not  to  be  good.^     The  cause  of  the  absence  of 

^  Davy  V.  Smith,  3  Salk.  395.  A  testatrix  signed  in  the  presence 
of  the  witnesses  who,  twenty  minutes  afterwards,  subscribed  their 
names  in  an  adjoining  room.  The  door  was  open,  but  the  testatrix 
was  not  aware  that  they  were  signing.  Held,  that  the  attestation  was 
not  sufficient.  Jenner  v.  Ffinch,  Law  Rep.  5  P.  U.  106.  In  Casson  v. 
Dade  (1  Bro.  C.  C.  99),  the  testatrix,  being  an  invalid,  executed  the 
will  when  sitting  in  her  carriage  at  the  door  of  her  attorney's  office, 
the  witnesses  attending  her  ;  after  having  seen  the  execution  they  took 
the  will  into  the  office  to  subscribe  their  names,  and  the  carriage  was 
put  back  to  the  window,  through  which,  it  was  sworn  by  a  person  in 
the  carriage,  the  testatrix  might  have  seen  what  passed.  Lord  Thur- 
low  was  of  opinion  that  the  will  was  well  executed. 

2  Reynolds  v.  Reynolds,  1  Speers,  S.  C.  256. 

3  Doe  V.  Manifold.  1  M.  &  S.  294 ;  Boldry  v.  Parris,  2  Cush.  433. 
See  Riggs  v.  Riggs,  135  Mass.  238. 

In  Raymond  v.  Wagner,  178  Mass.  315,  the  attestation  was  held 
good,  although  two  of  the  witnesses  subscribed  at  a  table  in  a  room 
separated  by  a  narrow  entry  from  the  room  in  which  the  testatrix  was 
lying  in  bed.  She  could  have  seen  them  by  raising  herself  slightly  in 
bed,  but  it  did  not  appear  either  that  she  raised  herself  or  that  she 
was  able  to  raise  herself.  In  IMendell  v.  Dunbar,  169  Mass  74,  it  was 
held  that  the  will  was  not  properly  attested,  the  testator,  who  was  ill 
in  bed,  having  signed  in  the  presence  of  the  witnesses,  who  then  with- 
drew to  another  room,  no  part  of  which  was  visible  from  any  part  of 
the  room  where  the  testator  remained,  and  they  there  subscribed  as 
witnesses. 


"38        PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

the  witnesses  is  not  material ;  the  effect  is  the  same, 
even  if  the  absence  was  with  the  consent  or  request  of  the 
testator.  ^  If  the  witness  subscribes  in  the  testator's 
absence  it  is  not  sufficient,  even  if  he  afterwards  acknowl- 
edges his  signature  in  the  presence  of  the  testator.^  An 
attestation  made  in  the  testator's  room  is  presumed  to  have 
been  made  in  his  presence  until  the  contrary  is  shown ; 
if  not  made  in  the  same  room  it  is  presumed  not  to  have 
been  made  in  his  presence  until  it  is  shown  to  have  been 
otherwise.^  And  it  will  be  presumed,  in  the  absence  of 
evidence  to  the  contrary,  that  the  witnesses  subscribed 
in  the  most  convenient  part  of  the  room,  and  the  posi- 
tion of  a  table,  probable  to  have  been  used,  would  be 
considered.  * 

It  is  not  necessary  to  the  due  execution  of  the  will  that 
the  attesting  witnesses  should  subscribe  in  tlie  presence 
of  each  other.  A  will  attested  by  three  witnesses,  who 
separately  and  at  different  places  subscribe  their  names, 
at  the  request  of  the  testator,  and  in  his  presence,  is 
well  attested.  ^ 

An  attesting  witness  may  subscribe  by  making  his 
"  mark,"  but  such  manner  of  subscribing  is  never  advis- 
able and  seldom  necessary.^ 

No  particular  form  of  words  is  necessary  in  the  attesta- 

1  Broderick  v.  Broderick  1  P.  Wms.  239. 

2  Chase  v.  Kittredge,  11  Allen,  40. 

3  2  Greenl.  Ev.  §  678. 

*  Winchelsea  v.  Wanchope,  3  Russ.  444. 

s  Hogan  V.  Grosvenor,  10  Met.  54;  Dewey  v.  Dewey,  1  Met.  349. 

^  Chase  v.  Kittredge,  11  Allen,  49,  59;  Jackson  v.  Van  Deusen, 
5  Johns.  144;  Doe  v.  Caperton,  9  Carr.  &  P.  59.  B.,  a  witness,  being 
unable  to  write.  A.,  another  witness,  at  his  request,  guided  his  hand. 
Held,  that  B.'s  subscription  was  sufficient.  In  the  Goods  of  Frith, 
1  Swa.  &  Trist.  8. 


COMPETENCY   OF   WITNESSES   TO   WILLS.  39 

tion  clause  wliich  the  witnesses  subscribe,  noi  need  it  state 
the  fact  that  the  witnesses  subscribed  it  in  the  testator's 
presence,  though  the  fact  that  they  did  so  is  required  to  be 
clearly  proved.^ 

Section  III. 

AS   TO    THE    COMPETENCY    OP   THE    ATTESTING   WITNESSES. 

The  object  of  the  statute  in  requiring  every  will  to  be 
attested  and  subscribed  in  the  testator's  presence  by  three 
or  more  competent  witnesses,  is  to  surround  the  testator,  at 
the  time  he  executes  his  will,  with  disinterested  persons, 
who  may  protect  him  from  frauds  that  might  otherwise  be 
practised  upon  his  infirmity  or  debility,  and  to  ascertain 
and  judge  of  his  sanity. 

Competent  witnesses  are  persons  who  are  not  disqualified 
by  reason  of  interest,  crime,  or  deficiency  of  understanding. 

Section  20  of  chapter  175  of  the  Revised  Laws  provides 
that,  except  in  certain  cases  there  mentioned,  "any  person 
of  sufficient  understanding,  although  a  party,  may  testify 
in  any  proceeding,  civil  or  criminal,  in  court,  or  before  a 
person  who  has  authority  to  receive  evidence."  Section  23 
of  the  same  chapter  provides  that  section  20  and  the  follow- 
ing two  sections  shall  not  apply  to  the  attesting  witnesses 
to  a  will  or  codicil.  Their  competency  must  therefore  be 
determined  by  the  rules  previously  in  force. 

It  was  formerly  held  that  an  attesting  witness  who  took 
a  beneficial  devise  or  legacy  under  the  will  which  he  at- 
tested was  not  a  competent  witness  to  prove  its  execution ; 
but  as  it  was  found  that  to  allow  a  will  to  be  wholly  de- 
feated on  account  of  the  existence  of  such  an  interest  on 
the  part  of  a  witness  was  productive  of  inconvenience  and 

^  Eliot  V.  Eliot,  10  Allen,  357 ;  Ela  i'.  Edwards,  16  Gray,  91. 


40        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

injustice,  a  statute  ^  was  passed  whicli  restored  the  com- 
petency of  such  a  witness  by  destroying  his  interest.  The 
devise  or  legacy  to  the  witness  was  made  void,  and  he  was 
admitted  to  testify.  The  same  rule  is  established  in  this 
state,  by  the  statute  which  provides  that  "  a  beneficial  de- 
vice or  legacy  made  in  a  will  to  a  person  who  is  a  subscrib- 
ing witness  thereto,  or  to  the  husband  or  wife  of  such  a 
person,  shall  be  void  unless  there  are  three  other  competent 
subscribing  witnesses  to  such  will."  2 

A  mere  charge  on  the  lands  of  the  devisor  for  the  ])ay- 
ment  of  debts  will  not  prevent  his  creditors  from  being 
competent  witnesses  to  his  will,'^  and  a  member  of  a  corpo- 
ration to  which  property  is  given  by  will,  in  trust  for  chari- 
table uses,  is  a  competent  attesting  witness.*  The  executor 
named  in  a  will  is  a  competent  subscribing  witness.^  An 
heir  at  law  who  is  disinherited  is  a  competent  witness  in 
support  of  a  will.^  A  wife  is  not  a  competent  witness  to 
her  husband's  will,'  or  to  a  will  which  contains  a  devise 
to  him.^ 

A  person  who  has  been  convicted  of  an  infamous  crime 
is  not  a  competent  witness,  such  a  person  being  considered 
as  having  no  regard  for  the  obligations  of  an  oath.  Cer- 
tain crimes  have  been  held  to  be  infamous,  and  certain 
other  offences  have  been  held  not  to  have  a  disqualifying 

1  25  Geo.  TI.  c.  6. 

2  R.  L.  c.  135,  §  3.  »  Ibid.  §  2. 

*  Loring  v.  Park,  7  Gray,  42.  A  legacy  to  a  town  does  not  dis- 
qualify an  inhabitant  of  and  a  taxpayer  in  the  town  from  being  an 
attesting  witness  to  the  will.     Hitchcock  v.  Shaw,  160  Mass.  140. 

^  Wyman  v.  Symmes,  10  Allen,  153 ;  Sullivan  v.  Sullivan,  106 
Mass.  474. 

^  Sparhawk  v.  Sparhawk,  10  AUen,  155. 

''  Pease  r.  Allis,  110  Mass.  157;  Jenkins  j;.  Dawes,  115  Mass.  601; 
Powers  V.  Codwise,  172  Mass.  425. 

*  Sullivan  v.  Sullivan,  supra. 


COMPETENCY   OF    WITNESSES   TO   WILLS.  41 

effect.  The  precise  rule  does  not  clearly  appear  from  the 
adjudicated  cases.  "  The  test  appears  to  be  whether  or  not 
the  crime  shows  such  depravity,  or  such  a  disposition  to 
pervert  public  justice  in  the  courts,  as  creates  a  violent  pre- 
sumption a<2;ainst  the  truthfulness  of  the  offered  witness,  — 
the  difficulty  being  in  the  application  of  this  test."  ^  It  has 
been  adjudged  "that  persons  are  rendered  infamous,  and 
therefore  incompetent  to  testify,  by  having  been  convicted 
of  forgery,  perjury,  subornation  of  perjury,  suppression  of 
testimony  by  bribery,  conspiracy  to  procure  the  absence 
of  a  witness,  or  other  conspiracy  to  accuse  one  of  a  crime, 
barratry,"  2  larceny ,3  and  the  receiving  of  stolen  goods 
knowing  them  to  have  been  stolen.*  But  convictions  for 
adultery,^  for  "  deceit  in  the  quality  of  provisions,  deceits 
by  false  weights  and  measures,  conspiracy  to  defraud  by 
spreading  false  news,"  ^  "  the  attempt,  not  amounting  to  a 
conspiracy,  to  procure  the  absence  of  a  witness,"  and  the 
keeping  of  gaming  and  bawdy  houses,  it  seems,  do  not  dis- 
qualifyj  The  full  pardon  of  one  convicted  of  an  infamous 
crime  restores  his  competency  as  a  witness ;  but  the  mere 
remission  of  his  sentence  does  not.^ 

The  statute  provision  that  the  will  shall  be  attested  by 
competent  witnesses,  refers  to  their  competency  at  the 
time  they  subscribe.  If,  after  the  execution  of  the  will, 
and  before  it  is  admitted  to  probate,  any  of  the  witnesses 
became  infamous,  insane,  or  otherwise  disqualified,  the 
will  may  be  sustained  by  proof  of  the  handwriting  of  those 

1  1  Bishop,  New  Crim.  Law,  §  974.         2  1  Qreenl.  Ev.  §  373. 

»  Commonwealth  v.  Keith,  8  Met.  531. 

*  Commonwealth  i'.  Rogers,  7  Met.  500. 

6  Little  V.  Gibson,  39  N.  H.,  505. 

«  1  Greenl.  Ev.  §  373.  "^  1  Bishop,  New  Crim.  Law,  §  974. 

8  Perkins  v.  Stevens,  24  Pick.  277. 


42        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

who  are  thus  rendered  incompetent  to  testify.  If  tlie 
witnesses  are  competent  at  the  time  they  attest,  their  sub- 
sc(iucnt  incompetency,  from  whatever  cause  it  arises,  will 
not  prevent  the  probate  and  allowance  of  the  will,  if  it  is 
otherwise  satisfactorily  proved.^  It  has  been  claimed  that 
a  person  under  the  age  of  fourteen  years  is  presumed  to  be 
incompetent,  from  defect  of  understanding:,  to  attest  the 
execution  of  a  will ;  but  the  competence  of  a  child  offered 
as  a  witness  is  to  be  determined  by  the  court  as  a  matter 
of  fact  in  each  case.^ 

Section  4  of  chapter  135  of  the  Revised  Laws  provides 
that  a  will  made  and  executed  in  conformity  with  the  law 
existing  at  the  time  of  its  execution  shall  have  the  same 
effect  as  if  made  pursuant  to  the  provisions  of  that 
chapter. 

Section  IV. 

EXECUTION   OF    CODICILS. 

A  codicil  is  an  addition  or  supplement  to  a  will.  By 
our  statutes  the  term  "  will "  is  construed  to  include 
codicils.3 

The  formalities  to  be  observed  in  the  execution  of  codi- 
cils are  the  same  as  are  required  by  statute  in  the  execu- 

1  R.  L.  c.  135,  §  2. 

2  Carlton  v.  Carlton,  40  N.  H.  14;  State  v.  Sawtelle,  66  N.  H. 
488,  502 ;  Commonwealth  v.  Lynes,  142  Mass.  577  ;  and  Common- 
wealth V.  Robinson,  165  Mass.  426.  In  the  last  case  cited,  the  wit- 
ness who  was  allowed  to  testify  was  less  than  six  years  old  at  the  time 
of  the  trial.  In  State  v.  Sawtelle,  supra,  the  testimony  of  Marion 
Sawtelle,  a  girl  evidently  less  than  fourteen  years  of  age  and  who 
testified  that  she  was  eight  years  old,  was  admitted.  See  also  Wheeler 
V.  United  States,  159  U.  S.  523. 

8  R.  L.  c.  3,  §  5,  cl.  24;  Gray  v.  Sherman,  5  Allen,  198;  Lyman 
r.  Coolidge,  176  Mass.  7,  9. 


EXECUTION    OF   CODICILS.  43 

tion  of  wills.  The  codicil  must  be  in  writing,  signed  l)y 
the  testator  or  by  some  person  in  his  presence  and  by  his 
express  direction,  and  attested  and  subscribed  in  his 
presence  by  at  least  three  competent  witnesses.  The 
attesting  witnesses  may  be  the  same  persons  who  sub- 
scribed the  original  will,  or  other  competent  witnesses. 
A  will  may  have  several  codicils,  and  each  must  be  sepa- 
rately executed. 

A  codicil  duly  attested  may  communicate  the  efficacy 
of  its  attestation  to  an  unattested  will  or  previous  codicil 
so  as  to  render  effectual  any  devise  contained  in  such 
prior  unattested  paper,  when  the  several  instruments  are 
written  on  the  same  paper.  This  may  be  the  effect  when 
the  codicil  does  not  refer  in  terms  to  the  unattested  in- 
strument ;  and  even  when  written  on  a  separate  paper  if  it 
expressly  refers  to  the  original  instrument.^ 

The  effect  of  a  codicil  ratifying,  confirming,  and  repub- 
lishing a  will  is  to  give  the  same  force  to  the  will  as  if  it 
had  been  written,  executed,  and  published  at  the  date  of 
the  codicil.^ 

A  codicil  may  have  the  effect  of  impliedly  revoking  the 
later  in  date  of  two  wills  by  expressly  referring  to  and 
recognizing  the  prior  one  as  the  actual  will  of  the  testator.^ 
A  codicil  will  refer  to  the  latest  of  several  wills  if  no 
express  date  is  named.^  A  will  revoked  by  implication, 
as  by  a  change  in  the  testator's  circumstances,  may  be 
republished  by  a  codicil  duly  attested.^     So  a  will  made 

1  1  Jarm.  on  Wills  (6th  Am.  ed.),  104;  1  Underbill  ou  WiUs, 
§  216. 

2  Brimmer  v.  Sohier,  1  Cusli.  118;  Miles  v.  Boyden,  3  Pick.  216; 
Haven  v.  Forster,  14  Pick.  543 ;  Pratt  v.  Rice,  7  Cush.  212  ;  Hosea  v. 
Jacobs,  98  Mass.  65. 

s  Crosbie  r.  INIacdonald,  4  Ves.  610.  *  Ibid. 

^  See  1  Williams  Ex.  (6tb  Am.  ed.)  254,  and  cases  there  cited. 


44  PROCEEDINGS   IN   THE    PROBATE   COURTS. 

by  a  person  not  of  full  age,  or  of  unsound  mind,  or  other- 
wise incapacitated,  may  be  made  effectual  by  a  codicil 
republishing  the  same  and  duly  executed  after  the  disa- 
bility is  removed.  And  a  will  executed  by  a  person  under 
undue  influence  may  be  made  valid  by  being  confirmed 
and  republished  by  a  codicil  subsequently  executed,  when 
the  testator  is  free  from  such  influence.^  A  codicil,  by 
republishing  a  will,  may  give  effect  to  a  devise  which 
would  otherwise  have  been  void  on  account  of  the  devisee 
being  a  witness  to  the  original  will.^ 


Section  V. 

AS   TO   the   testator's    SOUNDNESS   OF   MIND. 

The  right  of  disposing  of  property  by  will  is  limited  by 
the  statute  to  persons  of  sound  mind,  and  the  question 
raised  by  this  restriction  is  the  one  presented  for  deter- 
mination in  a  majority  of  the  contested  cases. 

To  establish  the  testator's  mental  capacity  it  must  ap- 
pear that  he  possessed  mind  and  memory  sufhcient  to  en- 
able him  to  understand  the  nature  and  consequences  of  his 
testamentary  act. 

Mere  ability  to  answer  usual  and  familiar  questions  is 
not  enough.     The  testator  must  have  memory.     "  A  man 

1  See  1  Williams  Ex.  (6th  Am.  ed.)  75. 

2  Mooers  v.  White,  6  Johns.  Ch.  375. 

An  additional  legacy,  given  by  a  codicil,  is  attended  with  the  same 
incidents  and  qualities  as  the  original  legacy.  Tilden  v.  Tiiden,  13 
Gray,  103  ;  Brown  v.  Brown,  137  Mass.  541,  and  cases  cited.  A  second 
legacy  given  to  a  person  by  a  codicil  is  to  be  treated  as  additional  to 
the  legacy  in  the  original  will,  in  the  absence  of  anything  signifying  a 
different  intention.  Wainwright  v.  Tuckermau,  120  Mass.  232;  Bates, 
Petitioner,  151  Mass.  252,  257. 


MENTAL   CAPACITY    OF   TESTATOR.  45 

in  whom  this  faculty  is  wholly  extinguished  cannot  be  said 
to  possess  an  understanding  to  any  degree  whatever,  or 
for  any  purpose.  But  his  memory  may  be  very  imperfect ; 
it  may  be  greatly  impaired  by  age  or  disease;  he  may 
not  be  able  at  all  times  to  recollect  the  names,  the  persons, 
or  the  families  of  those  with  whom  he  had  been  intimately 
acquainted  ;  he  may  at  times  ask  idle  questions,  and  repeat 
those  which  had  before  been  asked  and  answered,  and  yet 
his  understanding  be  sufficiently  sound  for  many  of  the 
ordinary  transactions  of  life.  He  may  not  have  sufficient 
strength  of  memory  and  vigor  of  intellect-  to  make  and 
digest  all  the  parts  of  a  contract,  and  yet  be  competent  to 
direct  the  disposition  of  his  property  by  will.  This  is  a 
subject  which  he  may  possibly  have  often  thought  of ;  and 
tliere  is  probably  no  person  who  has  not  arranged  such  a 
disposition  in  his  mind  before  he  committed  it  to  writing. 
The  question  is  not  so  much  what  was  the  degree  of  mem- 
ory possessed  by  the  testator,  as  this :  Had  lie  a  disposing 
memory  ?  Was  he  capable  of  recollecting  the  property  he 
was  about  to  bequeath,  the  manner  of  distributing  it,  and 
the  objects  of  his  bounty  ?  To  sum  up  the  whole  in  its 
most  simple  and  intelligible  form.  Were  his  mind  and 
memory  sufficiently  sound  to  enable  him  to  know  and 
understand  the  business  in  which  he  was  engaged  at  the 
time  when  he  executed  his  will?"i 

It  is  not  necessary  that  the  testator  should  be  possessed 
of  a  mind  naturally  strong,  to  enable  him  to  make  a  valid 
will.2     Mere  weakness  of   understanding  is  not  an  objec- 

1  Washington,  J.,  in  Stevens  v.  Vancleve,  4  Wash.  C.  C.  262;  and 
see  Hathorn  v.  King,  8  Mass.  371 ;  Hastings  v.  Rider,  99  Mass.  622 ; 
Converse  v.  Converse,  21  Vt.  168;  Kinne  v.  Kinne,  9  Conn.  105; 
Stewart  v.  Lispenard,  26  Wend.  253. 

2  Whitney  v.  Twombly,  136  Mass.  145. 


46        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

tion,  for  courts  cannot  measure  the  size  of  people's  under- 
standings and  capacities.  "  If  a  man,"  says  Swinburne, 
"  be  of  a  mean  understanding  (neither  of  the  wise  sort  or 
the  foolish),  but  indifferent  as  it  were  betwixt  a  wise  man 
and  a  fool,  yea,  though  he  rather  incline  to  the  foolish 
sort,  so  that  for  his  dull  capacity  he  might  worthily  be 
termed  grossum  caputs  a  dull  pate,  or  a  dunce,  such  a  one 
is  not  prohibited  from  making  his  statement."  ^ 

In  a  large  proportion  of  the  cases  in  which  the  sanity 
of  testators  is  made  a  question,  the  alleged  want  of  capac- 
ity is  in  the  decay  of  the  faculties  resulting  from  old  age, 
or  the  effect  of  disease,  or  both  combined.  But  neither 
extreme  old  age,  nor  debility  of  body,  will  affect  the 
capacity  to  make  a  will,  provided  the  testator  possesses 
the  sound  mind  necessary  to  the  disposition  of  his  prop- 
erty. The  law  looks  only  to  the  competency  of  his 
understanding.^ 

EVIDENCE   ON    QUESTIONS   OF   THE  TESTATOR'S    SANITT. 

The  legal  presumption,  in  the  absence  of  evidence  to  the 
contrary,  is   in   favor   of  the   testator's    sanity.^     It  was 

1  Swinburne  on  Wills,  Pt.  2,  §  4. 

2  In  Van  Alst  v.  Hunter  (5  Johns.  Ch.  148),  the  testator  was  more 
than  ninety  years  old  when  he  made  his  will.  Chancellor  Kent  said  ; 
"It  is  one  of  the  painful  consequences  of  extreme  old  age  that  it 
ceases  to  excite  interest,  and  is  apt  to  be  left  solitary  and  neglected. 
The  control  which  the  law  still  gives  to  a  man  over  the  disposal  of  his 
property  is  one  of  the  most  efficient  means  which  he  has  in  protracted 
life  to  command  the  attentions  due  to  his  infirmities."  In  Reed's 
Will  (2  B.  Monr.  79),  the  testator  was  eighty  years  old  and  physically 
helpless  from  palsy,  and  his  will  was  sustained.  In  Jennings  v.  Pen- 
dergas  (10  Md.  346),  a  will  made  by  a  testatrix  at  the  age  of  ninety- 
six  was  sustained. 

'  Baxter  v.  Abbott,  7  Gray,  71,  Thomas,  J.,  dissenting  ;  Baldwin 
V.  Parker,  99  Mass.  84;  Richardson  v.  Bly,  181  Mass.  —  (63  N.  E. 


EVIDENCE   AS    TO   TESTATOK'S   MENTAL    CONDITION.         47 

forn.crly  held  that,  the  testator's  sanity  having  been  testi- 
fied to  by  the  attesting  witnesses,  the  burden  shifted,  and 
was  upon  the  party  opposing  the  probate  to  show  that  the 
testator  was  not  of  sound  mind  ;  but  the  more  recently 
decided  cases  hold  that  the  burden  of  proving  the  sanity 
of  the  testator  is  upon  him  who  offers  the  will  for  probate, 
and  does  not  shift  upon  evidence  of  his  sanity  being  given 
by  the  subscribing  witnesses.^ 

The  subscribing  witnesses  are  regarded  in  law  as  per- 
sons placed  near  the  testator  at  the  time  he  executes  his 
will,  in  order  that  no  fraud  may  be  practised  upon  him, 
and  to  judge  of  his  capacity.  Tliey  are  supposed  to  have 
satisfied  themselves  as  to  the  testator's  mental  condition, 
and  are  therefore  permitted  to  give  their  opinions  upon 
that  point.2  They  may  be  inquired  of  as  to  the  grounds  of 
their  opinions  on  cross-examination,  and  other  evidence 
is  admissible  to  support  or  contradict  them.  Any  person 
may  testify  as  to  the  appearance  of  the  testator,  and  to 
facts  from  which  the  state  of  his  mind  may  be  inferred, 
and  medical  experts  may  then  be  inquired  of  as  to  the 
conclusions  they  draw  from  the  circumstances  and  symp- 

Rep.  3) ;  Crowninshield  v.  Crowninshield,  2  Gray,  524,  so  far  as  this 
case  seems  to  hold  that  there  is  no  legal  presumption  of  the  testator's 
sanity,  is  overruled  by  the  later  cases  cited. 

^  Crowninshield  v.  Crowninshield,  2  Gray,  524;  Barker  v.  Comins, 
110  Mass.  477  ;  Bacon  v.  Bacon,  181  Mass.  —  (62  N.  E.  ilep.  990) ; 
Williams  v.  Robinson,  42  Vt.  658  ;  Gerrish  v.  Xason,  22  M.  E.  4o8; 
Delafield  i'.  Parish,  25  N.  Y.  9 ;  Barry  v.  Butlin,  1  Curt.  Eccl.  638. 

-  Needham  v.  Ida,  5  Pick.  510;  Williams  v.  Spencer,  150  Mass. 
346,  and  cases  cited ;  Melanefy  v.  Morrison,  152  Mass.  476 ;  but  their 
opinions  as  to  whether  the  testator  had  sulficient  strength  of  mind  to 
comprehend  a  certain  clause  of  the  will  are  inadmissible.  Melanefy  v. 
Morrison,  supra.  Declarations  of  a  deceased  witness  that  the  testator 
was  insane  at  the  time  of  executing  the  will  are  inadmissible.  Sewall 
V.  Robbius,  139  Mass.  164,  and  cases  cited. 


48        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

toms  proved  to  have  existed.^  The  mere  opinions  of 
witnesses  who  are  not  experts  have  been  held  inadmis- 
sible ;  2  but  in  Baxter  v.  Abbott,"  it  was  held  that  a  phy- 
sician who  had  practised  many  years  in  the  testator's 
neighborhood,  and  had  at  times  been  his  medical  adviser, 
and  who  saw  and  conversed  with  him  a  short  time  before 
the  making  of  the  will,  was  competent  to  state  his  opinion 
of  the  testator's  sanity,  though  he  was  not  an  expert  on 
the  particular  subject  of  insanity. 

The  only  witnesses  who  are  competent  to  give  in  evidence 
their  opinions  as  to  the  sanity  of  the  testator  are  the  wit- 
nesses to  the  will,  a  physician  who  has  been  his  medical 
adviser,  and  persons  qualified  as  experts  in  regard  to 
mental  diseases.* 

Evidence  of  insanity  both  before  and  after  the  time  of 
making  the  will  is  admissible.^  The  fact  that  the  testator 
committed  suicide  soon  after  making  his  will  may  be 
proved,  but  is  not  conclusive  evidence  of  insanity  ;  for  it 
is  said  his  power  of  reasoning  on  other  subjects  may  have 

^  Upon  the  trial  of  an  issue  of  the  testator's  sanity,  an  expert,  al- 
though he  has  heard  all  the  evidence,  is  not  to  be  asked,  "  Suppose  all 
the  facts  stated  by  the  witness  to  be  true,  was  the  testator  laboring 
under  an  insane  delusion,  or  was  he  of  unsound  mind  ?  "  But  the 
facts  upon  which  his  opinion  is  asked  should  be  put  to  him  hypo- 
thetically.  Woodbury  v.  Obear,  7  Gray,  467;  Miller  v.  Smith,  112 
Mass.  475. 

2  Poole  V.  Richardson,  3  ]\Iass.  330 ;  Needham  v.  Ide,  5  Pick.  510 ; 
Commonwealth  v.  Fairbanks,  2  Allen,  511  ;  Hastings  v.  Rider,  99 
Mass.  624;  Smith  i'.  Smith,  157  Mass.  389;  Clark  v.  Clark,  168  Mass. 
523,  525.  In  Hathorn  v.  King,  8  Mass.  371,  attending  physicians 
were  first  allowed  to  give  their  opinion. 

8  7  Gray,  71  ;  and  see  Hastings  v.  Rider,  supra  y  Lewis  v.  Mason, 
109  Mass.  169. 

*  May  V.  Bradlee,  127  Mass.  414,  421 ;  Smith  v.  Smith,  157  Mass. 
346  ;  Clark  v.  Clark,  168  Mass.  523,  525. 

^  Dickinson  v.  Barber,  9  Mass.  225. 


EVIDENCE    AS    TO    TESTATOU'S    MENTAL    CONDITION.        49 

been  wholly  unimpaired.^  The  fact  that  he  was  under 
guardianship  as  an  insane  person  is  lyrima  facie  evidence 
of  inca[)acity,  but  may  be  explained  by  other  evidence.^ 
The  testator's  declarations  so  near  the  time  of  makin<5 
the  will  as  to  be  a  part  of  the  res  gestce  are  admissible,^ 
and  the  fact  of  his  silence  when  the  subject  of  his  inca- 
pacity was  talked  of  in  his  hearing  has  been  allowed  to  be 
proved.*  The  fact  that  the  will  was  written  by  the  testa- 
tor himself,  and  is  sensible  in  its  provisions,  is  the  best 
evidence  of  his  capacity;^  but  a  will  is  not  to  be  invali- 
dated merely  because  its  provisions  are  imprudent  and 
unaccountable.  General  facts  upon  the  subject  of  insanity, 
though  contained  in  books  of  established  reputation,  are 
not  admissible.^  The  attestation  of  a  will  is  not  evidence 
that  the  witness  believed  the  testator  to  be  sane.'^ 

Evidence  is  admissible  to  show  that  the  testator's  family, 
either  on  his  father's  or  mother's  side,  were  subject  to 
insanity,  or  that  his  parents  or  other  near  relatives  were 

^  Brooks  V.  Barrett,  7  Pick.  97.  A  testator  committed  suicide  on 
the  day  next  after  that  on  which  he-made  his  will,  and  the  will  was 
established.     Chambers  v.  Queen's  Proctor,  2  Curteis,  415. 

2  Breed  r.  Pratt,  18  Pick.  115;  Stone  v.  Damon,  12  Mass.  488; 
Crowninshield  v.  Crowninshield,  2  Gray,  524;  Garnett  y.  Garnett,  114 
Mass.  381;  Hamilton  v.  Hamilton,  10  R.  I.  538. 

8  1  Greenl.  Ev.  §  108;  Robinson  v.  Hutchinson,  26  Vt.  38. 

4  Irish  V.  Smith,  8  Serg.  &  R.  .573. 

6  Overton  r.  Overton,  7  B.  Monr.  Gl.  See  Davis  v.  Calvert,  5  Gill  & 
Johns.  269. 

^  Commonwealth  v.  Wilson,  1  Gray,  337;  Ware  f.  Ware,  8  Greenl. 
42;  Collier  v.  Simpson,  5  Carr.  &  P.  74. 

■^  Baxter  i\  Abbott,  7  Gray,  71.  On  the  trial  of  an  appeal  from 
the  decree  of  the  probate  court  allowing  a  will,  it  cannot  be  given  in 
evidence  against  the  will  that  one  of  the  attesting  witnesses  who  tes- 
tified in  the  probate  court  to  the  testator's  sanity,  and  has  since  de- 
ceased, declared,  after  the  probate,  that  he  wished  to  live  to  unsay  what 
he  had  said,  and  that  the  testator  was  insane.     Ibid. 

4 


50        PROCEEDINGS  IN  THE  PKOBATE  COURTS. 

insane.^  The  fact  is  well  established  that  a  predisposition 
to  insanity  is  frequently  transmitted  from  parent  to  child 
through  many  generations.  According  to  Esquirol,  this 
hereditary  taint  is  the  most  common  of  all  the  causes 
to  which  insanity  can  be  referred,  and  other  authorities 
assert  that  no  other  cause  can  be  assigned  for  the  disease 
in  a  majority  of  all  the  cases.  The  disease  may  not  appear 
in  a  child  who  goes  through  life  without  being  exposed 
to  any  exciting  cause,  but  with  such  predisposition,  insanity 
supervenes  from  very  slight  causes.  Hereditary  insanity 
is  induced  by  the  same  exciting  cause  in  the  offspring  as  in 
the  parent,  and  often  appears  about  the  same  age  and 
under  the  same  form.^ 

Evidence  of  merely  eccentric  habits,  together  with  the 
fact  that  the  will  contains  directions  that  appear  absurd, 
will  not  establish  the  fact  of  insanity ;  '■^  and  it  has  been 

1  Baxter  v.  Abbott,  7  Gray,  81. 

2  "  As  we  might  suppose,  children  that  are  born  before  insanity 
manifests  itself  in  the  parents,  are  less  subject  to  the  disorder  than 
those  which  are  born  afterwards.  When  one  parent  only  is  insane, 
there  is  less  tendency  for  the  predisposition  to  be  transmitted  than 
when  both  are  affected  ;  but  according  to  Esquirol,  this  predisposition 
is  much  more  readily  transmitted  through  the  female  than  through  the 
male  parent.  Its  transmission  is  also  more  strikingly  remarked  when 
it  has  been  observed  to  exist  in  several  generations  of  lineal  ances- 
tors, and,  like  other  hereditary  maladies,  it  appears  to  be  subject  to 
atavism  ;  i.e.,  it  may  disappear  in  one  generation,  and  reappear  in  the 
next.  Further,  the  children  of  drunken  parents,  and  of  those  who 
have  been  married  late  in  life,  are  said  to  be  more  subject  to  insanity 
than  those  born  under  other  circumstances."  2  Taylor's  Med.  Jur. 
(4th  ed.)  505,  and  see  1  Beck's  Med.  Jur.  725  ;  Ray's  Med.  Jur. 
(5th  ed.)  §  125. 

^  A  will  was  opposed  because  it  bore  intrinsic  evidence  of  the  tes- 
tator's insanity.  After  making  certain  bequests,  the  testator  directed 
his  executors  to  cause  some  part  of  his  bowels  to  be  converted  into 
fiddle-strings,  that  other  parts  should  be  sublimed  into  smelling-salts, 
and  that  the  remainder  of  his  body  should  be  vitrified  into  lenses  for 


EVIDENCE    AS    TO   TESTATOR'S    MENTAL    CONDITION.         51 

held  that  the  life,  opinions,  and  habits  of  a  testator  may- 
be reviewed  for  the  purpose  of  testing  the  allegations  of 
insanity.^  "  Monomania  is  very  liable  to  be  confounded 
with  eccentricity ;  but  there  is  this  difference  between 
them :  in  monomania,  there  is  obviously  a  change  of 
character,  —  the  individual  is  different  to  wdiat  he  was; 
in  eccentricity,  such  a  difference  is  not  marked,  —  he 
is,  and  always  has  been,  singular  in  his  ideas  and  actions. 
An  eccentric  man  may  be  convinced  that  what  he  is 
doing  is  absurd,  and  contrary  to  the  general  rules  of 
society  ;  but  he  professes  to  set  these  at  defiance.     A  true 

optical  purposes.  He  afterwards  said,  "  The  world  may  think  this  to 
be  done  in  a  spirit  of  singularity  or  whim."  He  had  expressed  a 
wish  to  have  his  body  converted  to  purposes  useful  to  mankind,  and 
had  consulted  a  physician  in  regard  to  chemical  experiments  to  be 
made  upon  it.  It  appeared  that  he  conducted  his  affairs  with  shrewd- 
ness and  ability,  and  that  he  was  treated  by  those  with  whom  he 
dealt  as  a  person  of  indisputable  capacity.  Sir  Herbert  Jenner,  in 
giving  judgment,  held  that  insanity  was  not  proved,  that  the  facts 
merely  amounted  to  eccentricity,  and  on  this  ground  he  pronounced 
for  the  validity  of  the  will. 

^  J.  W.  G.  made  his  will  in  England  a  few  weeks  before  his  death, 
in  which  he  gave  several  legacies,  and  directed  the  remainder  to  be 
paid  over  to  the  Turkish  ambassador  for  the  poor  of  Constantinople, 
and  also  for  the  erection  of  a  cenotaph  in  that  city,  inscribed  with  his 
name,  and  bearing  a  light  perpetually  burning  therein.  It  appeared 
that  he  had  lived  long  in  the  East,  had  studied  the  Koran  a  great 
deal,  and  was  an  avowed  believer  in  Mahommedanism.  The  preroga- 
tive court,  on  the  ground  of  this  extraordinary  bequest,  which  sounded 
to  folly,  and  on  parol  evidence  of  the  testator's  wild  and  extravagant 
language,  pronounced  him  of  unsound  mind  ;  but  it  was  held,  revers- 
ing that  decision,  that  as  the  insanity  attributed  to  the  deceased  was 
not  monomania,  but  general  mental  derangement,  and  as  the  proper 
mode  of  testing  the  allegation  was  to  review  the  life,  habits,  and  opin- 
ions of  the  testator,  on  such  a  review  there  was  nothing  absurd  or 
irrational  in  the  bequest,  or  anything  in  his  conduct,  at  the  date  of  the 
will,  indicating  derangement;  and  therefore  the  will  was  admitted  to 
probate.     29  Eng.  Law  &  Eq.  38. 


52        PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

monomaniac  cannot  be  convinced  of  his  error,  and  he 
thinks  that  his  acts  are  consistent  with  reason  and  the 
general  conduct  of  mankind.  In  eccentricity,  there  is 
a  will  to  do  or  not  to  do  ;  in  real  monomania,  the  controll- 
ing power  of  the  will  is  lost.  Eccentric  habits  suddenly 
acquired  are,  however,  presumptive  of  insanity."  ^ 

When  the  alleged  want  of  capacity  is  in  the  weakness 
and  prostration  of  physical  disease,  an  inquiry  into  the 
character  of  the  testator's  malady  will  sometimes  aid  in 
determining  the  question  of  his  soundness  of  mind.  It 
is  well  established  that  different  diseases,  though  equally 
fatal,  exercise  very  unlike  influences  upon  the  mental 
faculties.  "  Among  the  diseases  which  incapacitate  an 
individual  from  making  a  valid  will,  or  at  least  render 
his  rationality  doubtful,  may  be  enumerated  the  following: 
lethargic  and  comatose  affections.  These  suspend  the 
action  of  the  intellectual  faculties ;  so  also  does  an  attack 
of  apoplexy  ;  and  even  if  patients  recover  from  its  first 
effects,  an  imbecility  of  mind  is  often  left  which  unfits  an 
individual  from  the  duty  in  question.  Phrenitis,  delirium 
tremens,  and  those  inflammations  which  are  accompanied 
with  delirium,  also  impair  the  mind.  Finally,  in  typhoid 
fevers,  the  low  state  which  usually  precedes  death  is  one 
that  may  be  considered  as  incapacitating  the  individual. 
On  the  other  hand,  there  are  many  fatal  diseases  in 
which  the  patient  preserves  his  mind  to  the  last,  and  all 
dispositions  of  property  made  by  him  are  of  course  valid. 
Of  these,  none  is  more  striking  than  the  clearness  of  intel- 
lect which  sometimes  attends  the  last  stages  of  phthisis 
])ulmonalis."  ^ 

1  2  Taylor's  Med.  Jur.  (4th  ed.),  551;  1  Clevenger  Med.  Jur.  of 
Insanity,  278,  344. 

2  Beck's  Med.  Jur.  (Uth  ed.)  842. 


EFFECT   OF   INTEMPERANCE    AND    LUCID   INTERVALS.        53 

Long-continued  liabits  of  intemperance  may  gradually 
impair  the  memory  and  other  faculties,  and  produce  a 
species  of  insanity  wliich  will  render  the  person  incapable 
of  making  a  will.  A  person,  liowever,  who  is  habitually 
addicted  to  the  use  of  intoxicating  liquors,  and  at  times 
violently  excited,  may  make  a  valid  will  when  he  is  free 
from  the  excitement  of  liquor.  It  has  been  held  that  if 
tlie  testator's  habits  of  intoxication  are  not  such  as  to 
render  him  habitually  incompetent  for  the  transaction  of 
business,  it  is  necessary  for  the  party  objecting  to  his 
capacity  on  the  ground  of  casual  intoxication  to  prove  its 
existence  at  the  time  the  will  was  executed.^  The  ques- 
tion in  these,  as  in  all  cases  where  unsoundness  of  mind 
is  alleged,  is  whether  the  testator  knew  and  understood 
the  business  in  wliich  he  was  engaged  at  the  time  he 
executed  his  will. 

The  testator's  declarations  to  the  effect  that  he  was 
induced  to  sign  his  will  when  he  was  under  the  influence 
of  intoxicating  liquors,  are  not  admissible  evidence  of  the 
fact  that  he  was  so  incapacitated.  ^ 

Lucid  Intervals.  —  The  party  supporting  the  will  may 
show  that  the  testator,  although  insane  at  some  period  of 
his  life,  had  recovered  his  reason,  or  that  the  will  was 
made  during  a  temporary  cessation  of  the  insanity.  ^ 
Lunatics  occasionally  recover  for  a  time,  and  are  conscious 
of  their  acts.  The  lucid  interval  may  be  a  few  hours  or 
minutes  in  duration,  or  it  may  continue  for  weeks, 
months,  and  even  years.  Evidence  of  a  lucid  interval  is  to 
be  examined  with  great  caution,  especially  in  cases  where 
the  alleged  interval  was  of  brief  duration.     A  mere  dimi- 

1  Andrees  v.  Weller,  2  Green,  Ch.  604. 

2  Gibson  v.  Gibson,  3  Jones  (Mo.),  227. 
8  Breed  v.  Pratt,  18  Pick.  115. 


54        PROCEEDINGS  IX  THE  PKOBATE  COUETS. 

nation  in  the  violence  of  the  disorder  does  not  constitute  a 
lucid  interval.  It  need  not,  of  course,  appear  that  the  pre- 
disposition to  the  disease  had  been  extirpated,  or  that  the 
testator  had  regained  the  same  degree  of  intellectual  ability 
that  he  possessed  previous  to  his  insanity ;  but  it  must 
appear  that  he  was  conscious  of  his  acts,  and  able  to  under- 
stand their  nature  and  consequences.^  The  fact  that  the 
will  is  a  rational  one  and  made  in  a  rational  manner, 
though  not  conclusive,  is  strong  evidence  that  it  was  made 
in  a  lucid  interval.  ^ 

In  establishing  the  fact  of  a  lucid  interval,  evidence  has 
been  admitted  to  show  that  the  disposition  of  the  testator's 
property  made  by  his  will  was  consistent  with  his  intentions 
declared  previous  to  his  insanity.^ 

The  rule  that  insanity  proved  to  have  existed  at  a  par- 
ticular time  is  presumed  to  continue,  does  not  apply  to 
temporary  delirium  connected  with  a  violent  disease."* 

Partial  hisanity  —  Monomania. —  The  objection  has  been 
raised  in  some  cases  that  the  testator,  though  of  appar- 
ently sound  mind  upon  general  subjects,  labored  under  an 
insane  delusion  in  regard  to  particular  matters,  and  that 
such  delusions,  operating  upon  his  mind  at  the  time  he 
made  his  will,  deprived  him  of  his  disposing  capacity.  Such 
delusions  are  said  to  be  more  commonly  manifested  in  the 
testator's  unaccountable  antipathy  to  his  children  and  near 
relatives,  and  unfounded  suspicions  of  attempts  by  them  on 
his  life.  But  to  defeat  a  will  by  evidence  of  an  insane 
delusion  merely,  it  has  been  held  that  the  will  must  be 

1  Gombault  v.  Pub.  Admr.,  4  Bradf.  (JST.  Y.)  226 ;  Bannatyne  v.  Ban- 
natyiie,  l-i  Eng.  Law  &  Eq.  581 ;  1  Jarm.  on  Wills  (6th  Am.  ed.),  38. 

2  Nicholes  v.  Binns,  1  Swa.  &  Trist.  239. 

3  Coughlen's  case,  referred  to  in  Booth  v.  Blundell,  19  Ves.  508. 
*  Hix  V.  Whittemore,  4  Met.  545 ;  Little  v.  Little,  13  Gray,  266. 


WILLS  INVxVLIDATED  BY  FRAUD  AX])  UNDUE  INFLUENCE.      55 

traced  to,  and  shown  to  be  tlie  offspring  of,  such  insane 
delusion.^  The  declarations  of  the  testator,  proceeding 
from  partial  insanity,  are  not  admissible  as  evidence  of  the 
truth  of  his  statements,  but  may  properly  be  considered  in 
connection  with  other  facts  in  determining  the  general 
question  as  to  his  soundness  of  mind.^ 

It  is  within  the  discretion  of  the  court  to  fix  the  limits 
of  time  before  and  after  the  making  of  the  will  within 
which  evidence  to  show  specific  acts  of  unsoundness  of 
mind  on  the  part  of  the  testator  shall  be  confined.  In 
Howes  V.  Colburn,  165  Mass.  385,  this  time  was  limited  to 
a  period  from  about  eight  years  before  the  date  of  the  will 
to  about  two  and  a  half  years  after  its  date. 

Section  YI. 

wills  invalidated  by  fraud  and  undue  influence. 

The  testator,  in  order  to  make  a  valid  will,  must  enjoy 
full  liberty  in  the  disposition  of  his  estate.     A  will  obtained 

^  In  Greenwood's  case,  the  testator,  being  sick  and  delirious,  took 
some  medicine  from  the  hands  of  his  brother,  and  imagined  it  was 
poison  intended  to  kill  him.  He  recovered,  and  returned  to  his  profes- 
sion,—  that  of  a  barrister,  —  but  was  never  afterwards  free  from  the 
morbid  delusion.  He  disinherited  his  brother,  who  was  his  only  next 
of  kin.  Two  trials  were  had  on  the  question  of  sustaining  the  will, 
with  conflicting  verdicts,  and  the  result  was  a  compromise.  Stated  by 
Lord  Eldon  in  White  v.  Wilson,  13  Ves.  89. 

A  testator  who,  twenty-four  years  before  his  death,  had  a  dangerous 
fever,  during  which  he  contracted  a  strong  antipathy  towards  his 
brothers,  which  continued  through  his  life,  made  his  will  shortly  before 
his  death,  and  disinherited  them.  There  was  no  apparent  cause  for 
his  antipathy.  The  will  was  set  aside  on  the  ground  that  his  peculiar 
defect  of  intellect  influenced  his  disposition  of  his  estate.  Johnson  v. 
Moore's  Heirs,  1  Little  (Ky.),  371 ;  and  see  Dew  i-.  Clark,  3  Addams,  79  ; 
Thompson  v.  Thompson,  21  Barb.  (N.  Y.),  107. 

2  Woodbury  v.  Obear,  7  Gray,  467.  For  a  full  discussion  of  this 
point,  see  Shailer  v.  Bumstead,  99  Mass.  112. 


56        PROCEEDINGS  IN  THE  TEOBATE  COURTS. 

by  fraud  is  of  course  void/  and  the  effect  is  tlie  same 
where  the  testator  is  constrained  by  fear,  or  where  undue 
influence  is  used  to  control  the  disposition  of  his  estate. 
An  instrument  executed  under  such  circumstances  is  not 
the  will  of  the  testator,  but  is  the  dictation  of  another  per- 
son. Any  condition  of  things  that  restrains  the  testator 
from  the  free  exercise  of  his  own  judgment,  incapacitates 
him  as  a  testator. 

Objections  of  this  class  more  frequently  arise  in  cases 
where  the  testator  was  either  of  w^eak  mind  naturally,  or 
was  enfeebled  by  age  or  disease,  and  therefore  liable  to  be 
controlled  by  influences  which  would  not  affect  a  person 
of  strong  mind  and  good  health.^  A  person  may  be  of 
sound  mind  and  competent,  if  left  to  himself,  to  make  a 
valid  will,  but  he  may  be  induced  by  the  harassing  im- 
portunities of  those  about  him,  and  by  the  hope  of  quiet,  to 
dispose  of  his  property  in  a  manner  that  his  own  healthy 
and  unbiassed  judgment  would  not  approve.  A  will  made 
under  such  circumstances  is  regarded  as  a  result  of  coer- 
cion, and  cannot  be  sustained. 

The  degree  of  undue  influence  which  will  invalidate  a 
will  must  vary  with  the  circumstances  of  each  case.  The 
importunity  or  threatening  successfully  employed  to  coerce 
one  person  will  have  no  effect  on  another.  The  mental 
and  physical  condition  of  the  testator,  his  natural  strengtli 
or  feebleness  of  mind,  the  power  and  disposition  of  the  per- 

1  1  Jarm.  on  Wills  (6th  Am.  ed  ),  36,  37;  1  Williams  (7th  Am.  ed.), 
53;  Davis  v.  Calvert,  5  Gill  &  Johrs.  269;  Dietrick  i'.  Dietrick,  5  Serg. 
&  R.  207. 

2  An  alleged  will  which  was  wholly  in  the  handwriting  of  the  son 
of  the  testatrix,  and  mainly  in  his  interest,  and  executed  by  her  with- 
out the  knowledge  of  the  rest  of  the  family  when  she  was  eighty-three 
years  old,  was  disallowed,  ou  the  ground  of  undue  influence,  in  Jonea 
V.  Simpson,  171  Mass.  471. 


WILLS  INVALIDATED  BY  FP.AUD  AND  UNDUE  INFLUENCE.     0/ 

son  who  seeks  to  control  the  testator,  and  the  character  of 
the  intluences  brought  to  bear  upon  him,  are  to  be  consid- 
ered. Honest  suggestions  and  moderate  persuasion  do  not 
amount  to  undue  influence.  After  marriage,  a  husband  or  a 
wife  may  lawfully  use  persuasions  to  induce  the  other  to 
make  a  favorable  will.^  To  invalidate  the  will,  it  must 
a]ipear  that  the  ill-treatment,  threats,  violence,  or  persistent 
importunity,  was  sucli  as  to  destroy  the  free  agency  of  tlie 
testator.2  In  these  cases,  as  in  all  others,  the  party  offer- 
ing the  will  for  probate  must  prove  the  sanity  of  the  tes- 
tator ;  but  if  that  fact  is  established,  tlie  burden  of  proving 
undue  influence  is  upon  the  party  alleging  it. 

It  has  been  held  that  the  harmony  of  the  will  with  the 
testator's  disposition  and  affections,  and  his  declarations 
in  regard  to  it  when  in  health,  are  facts  to  be  considered 

1  Maynard  v.  Tyler,  168  Mass.  107. 

2  Jaiiii.  on  Wills  (6th  Am.  ed.),  36,  37;  1  Williams  Ex.  (7th  Am. 
ed.),  55. 

Any  one  has  a  right  by  fair  argument  or  persuasion,  or  by  virtuous 
influence,  to  induce  another  to  make  a  will  in  his  favor.  Miller  r. 
Miller,  5  Serg.  &  R.  267.  "^Neither  advice,  nor  argument,  nor  per- 
suasion would  vitiate  a  will  made  freely  and  from  conviction,  though 
such  will  might  not  have  been  made  but  for  such  advice  or  persuasion." 
Clayton,  C.  J.,  in  Chandler  r.  Ferris,  1  Harr.  454.  A  testatrix  whose 
property  amounted  to  $27,000,  ^Yho  was  eighty-three  years  of  age, 
and  had  nephews  and  nieces,  but  no  children,  gave  by  her  will  about 
S'l.OOO  in  legacies  to  her  nephews  and  nieces,  and  the  residue  to  her 
confidential  adviser  and  manager  of  her  property,  who  lived  in  her 
house  at  the  time  the  will  was  made,  and  until  her  death.  On  appeal 
from  the  probate  of  her  will  on  the  ground  of  her  mental  incapacity 
and  his  undue  influence,  it  was  held,  that  the  burden  of  proof  of  the 
absence  of  undue  influence  rested  upon  the  proponents  of  the  will, 
and  that  in  view  of  the  character  and  extent  of  his  confidentiil 
relations  to  the  testatrix  and  the  benefit  received  by  him  from  the  will, 
the  jury  would  have  been  warranted  in  the  inference,  without  any 
direct  proof,  that  he  took  part  in  procuring  the  will  from  the  testa- 
trix.    Richmond's  Appeal,  59  Conn.  226. 


58  PROCEEDINGS   IX    THE    niOBATE    COURTS. 

ill  determining  the  question  of  undue  iuflucncc.^  If  it 
appears  that  the  will  was  written  or  procured  to  be  written 
by  a  jiersnn  largely  benefited  by  its  provisions,  the  circum- 
stances under  which  it  was  made  will  be  more  strictly 
inquired  into.^  Evidence  that  the  testator  was  of  feeble 
mind,  and  believed  in  ghosts  and  supernatural  influences, 
has  some  tendency  to  show  that  weakness  of  mind  which 
would  be  easily  imposed  upon  by  the  exertion  of  undue 
influence.^  Subsequent  declarations  of  the  testator,  to  the 
effect  that  he  had  been  forced  to  sign  his  will,  are  not  com- 
petent evidence  of  the  fact  that  force  was  used.* 

^  Evidence  having  been  introduced  that  the  will  was  procured  to 
be  made  by  the  undue  influence  of  the  residuary  legatee,  it  was  held 
that  evidence  was  admissible,  on  the  other  side,  that  a  large  part  of 
the  property  of  the  testatrix  was  inherited  by  her  from  her  minor  son, 
who  died  many  years  previous,  and  who  was  greatly  attached  to  the 
residuary  legatee,  and  had  frequently  expressed  his  intention,  if  he 
should  attain  the  age  of  twenty-one  years,  to  leave  the  bulk  of  his 
property  to  him,  and  that  such  intention  was  known  to  the  testatrix. 
Glover  v.  Ilayden,  4  Cush.  580. 

For  an  examination  of  authorities  as  to  the  admissibility  of  the 
testator's  declarations,  see  Shailer  v.  Bumstead,  99  Mass.  112. 

2  Clarke  v.  Fisher,  1  Paige,  171  ;  Darley  v.  Darley,  3  Bradf.  (N.Y.) 
481 ;  Brydges  v.  King,  1  Hagg.  250 ;  Dodge  v.  March,  1  Hagg. 
612. 

'  Woodbury  v.  Obear,  7  Gray,  467.  Evidence  having  been  given 
that  a  devisee,  who  was  accused  of  having  made  use  of  undue  in- 
fluence, had  represented  to  the  testator  that  the  wife  of  one  of  his 
sons  was  an  extravagant  woman,  who  would  waste  anything  that 
might  be  given  to  her  husband,  the  opposers  of  the  will  were  allowed 
to  prove  that  her  general  behavior  and  character  were  good.  Diet- 
rick  V.  Dietrick,  5  Serg.  &  R.  207  ;  and  see  Nussearr.  Arnold,  13  Serg. 
&  R.  323. 

When  a  subscribing  witness,  who  is  accused  of  having  been  an  ac- 
complice in  a  fraud  upon  the  testator,  is  dead,  evidence  may  be  given  of 
his  general  good  character,  Provis  i'.  Reed,  5  Bing.  435  ;  but  not  if  he  is 
living,  Doe  i\  Harris,  7  Carr.  &  P.  330. 

*  Ibid. ;   Davis  v.    Davis,    123   Mass.   590 ;   Jackson  v.   Kuiffen, 


REVOCATION    OF   WILLS.  59 

When  the  will  is  presented  for  ])rol)ate  after  the  testator's 
death,  the  attorney  who  drafted  it  may  testify  as  to  the  direc- 
tions given  to  him  by  the  testator,  so  that  it  may  appear 
whether  the  instrument  presented  for  probate  is  or  is  not 
the  will  of  the  alleged  testator.^ 

A  will  may  be  void  in  part  and  valid  in  part.  It  may  be 
void  as  to  such  of  its  provisions  as  were  procured  by  fraud 
or  the  exercise  of  undue  influence,  and  valid  so  far  as  it 
was  the  free  act  of  the  testator. ^ 

Section  VII. 

REVOCATION   OF   WILLS. 

A  will,  executed  in  accordance  with  the  requirements 
of  the  statute,  is  presumed  to  have  existed  until  the  death 
of  the  testator ;  but  this  presumption  may  be  rebutted  by 
proof  of  its  revocation.  The  testator  may  revoke  his  will 
at  his  pleasure.  The  manner  of  revocation  is  pointed  out 
by  statute : — 

"  No  will  shall  be  revoked  except  by  burning,  tearing, 
cancelling  or  obliterating  it  with  the  intention  of  revoking 
it  by  the  testator  himself  or  by  a  person  in  his  presence 
and  by  his  direction  ;  or  by  some  other  writing  signed, 
attested,  and  subscribed  in  the  same  manner  as  a  will ;  or 
by  subsequent  changes  in  the  condition  or  circumstances 

2  Johns.  31;  Smith  r.  Fenner,  1  Gall.  (R.  I.)  174;  Moritz  v.  Brough, 
16  Serg.  &  R.  405.  But  such  declarations  are  admissible  to  show  a 
state  of  mind  easily  susceptible  to  undue  influence.  May  v.  Bradlee, 
127  Mass.  414  ;  Potter  v.  Baldwin,  133  Mass.  427  ;  Lane  i:  Moore,  151 
Mass.  87. 

1  Doherty  ;•.  O'Callaghan,  157  Mass.  90. 

2  Trimlestown  v.  D' Alton,  1  Dow  &  CI.  85  ;  Harrison's  Appeal,  48 
Conn.  202  ;  Florey's  Executors  v.  Florey,  24  Ala.  241 ;  Ogden  v.  Green- 
leaf,  143  Mass.  349  ;  Sumner  v.  Crane,  155  Mass.  484. 


60        TKOCEEDINGS  IN  THE  PROBATE  COURTS. 

of    the    testator   from  which    a  revocation    is  implied   by 
Law."  1 

The  revocation  of  a  will,  therefore,  may  be  either  express 
or  irtvpUed.  It  is  expressly  revoked  by  some  act  of  destruc- 
tion done  upon  it  with  the  intention  of  revoking  it;  or  by  a 
new  will  or  codicil  intended  as  a  substitute  for  it,  or  other 
writing,  formally  executed  with  the  express  intention  of 
revocation. 

EXPRESS   REVOCATIONS. 

The  mere  physical  act  of  burning,  tearing,  cancelling,'^ 
or  obliterating  a  will  is  not  of  itself  sufficient  to  consti- 

1  R.  L.  c.  135,  §  8. 

2  Cancelling,  as  the  term  was  originally  used,  is  the  defacing  of  a 
written  instrument  by  drawing  cross  lines  diagonally  over  its  face  for 
the  purpose  of  annulling  it ;  but  the  testator  may  cancel  his  will  by 
placing  upon  it  any  marks  or  writing  that  clearly  exhibits  his  inten- 
tion to  annul  the  instrument.     Evans'  Appeal,  58  Penn.  238. 

A  will  covered  the  first  page  of  the  paper  on  which  it  was  written, 
and  part  of  the  second.  The  testator,  two  years  after  the  execution  of 
the  will,  wrote  the  following  words  on  the  last  half  of  the  second  page: 
"  This  will  is  hereby  cancelled  and  annulled.  In  full  this  15th  day  of 
March,  in  the  year  1859;"  and  lower  on  the  same  page:  "In  testi- 
mony whereof  T  here  I  have."  There  were  no  other  marks  of  cancella- 
tion or  defacement.  Held,  that  the  will  was  revoked  by  cancellation. 
Warner  v.  Warner's  Estate,  37  Vt.  356. 

But  in  1884,  the  Supreme  Court  of  Wisconsin,  in  Ladd's  Will,  60 
Wise.  187,  decided  that  the  words,  "  I  revoke  this  will,"  written  on 
the  fourth  page  of  the  instrument,  upon  which  no  part  of  the  will 
was  written,  wei-e  not  a  revocation  of  the  will.  This  case  furnishes 
an  elaborate  discussion  of  the  meaning  of  the  word  "cancellation," 
and  considers  critically  the  decision  of  the  courts  in  the  case  of 
Evans'  Appeal,  58  Penn.  238,  and  Warner  v.  Warner's  Estate,  37  Vt. 
356. 

When  the  word  "  obsolete  "  was  written  by  the  testator  on  the 
margin  of  his  will,  there  being  no  other  evidence  of  his  intention, 
it  was  held  that  the  will  was  not  revoked.  Lewis  v.  Lewis,  2  W.  & 
Serg.  455. 

An  interlineation   made  by   the  testator's   direction  in  the  body 


REVOCATION    OF    WILLS.  61 

tute  a  revocation.  The  act  must  be  done  with  the  intention 
of  revoking.  If  the  testator  inadvertently  obliterates  his 
will,  it  will  remain  in  force,  notwithstanding  such  oblit- 
eration.^ So,  if  he  destroys  it  during  a  fit  of  insanity,  or 
if  it  is  destroyed  by  his  consent,  given  after  he  has  become 
non  compos  ;'^  or  if  it  is  destroyed  by  another  person  with- 
out his  knowledge,  it  is  not  revoked.^  Nor  is  the  will 
revoked  if  its  destruction  by  the  testator  is  the  effect  on 
his  mind  of  undue  influence.'* 

Burning,  tearing,  etc.,  in  a  slight  degree,  with  a  declared 
intent  to  revoke,  is  a  sufficient  revocation.  Where  the 
testator  gave  his  will  "  a  rip  "  with  his  hands, "  so  as  almost 

of  the  will,  after  its  execution,  will  not  revoke  the  will,  nor  will 
it  operate  to  change  the  provisions  of  the  will.  Wheeler  v.  Bent, 
7  Pick.  61. 

1  A  will  was  burnt  by  the  testator  on  the  supposition  that  he  had 
substituted  another  for  it,  but  which  was  not  duly  executed.  Pro- 
bate of  a  copy  of  the  first  will  granted.  Scott  v.  Scott,  1  Swa.  & 
Trist.  258. 

2  Idley  V.  Bowen,  11  Wend.  227  ;  Ford  v.  Ford.  7  Humph.  92  ; 
Scrubly  v.  Fordliani,  1  Add.  74.  The  testator,  to  revoke  a  will,  must 
be  at  the  same  time  competent  to  make  a  will,  or  the  act  of  revoca- 
tion will  be  a  nullity.  Smith  v.  Wait,  4  Barb.  Sup.  Ct.  (N.  Y.)  28  ; 
In  re  Downer,  26  Eng.  Law  &  Eq.  GOO.  The  burden  of  proving  that 
the  will  was  mutilated  by  the  testator  when  of  sound  mind,  is  upon 
the  party  alleging  the  revocation.  Harris  v.  Berrall,  1  Swa.  &  Trist. 
153. 

3  Onions  v.  Tyrer,  1  P.  Wms.  345;  Bennett  v.  Sherrod,  3  Ired.  303; 
]\Iiddleton  r.  Middleton,  19  Eng.  Law  &  Eq.  340.  The  fact  that  a  tes- 
tator, who  discovers  such  loss  of  his  will,  neglects  to  make  another,  has 
been  held  to  furnish  a  presumption  of  his  intention  to  revoke.  Steele 
V.  Price,  5  B.  Monr.  68. 

^  Rich  r.  Gilkey,  73  Maine,  595.  Where  the  revocation  proceeds 
from  mistake,  or  from  a  false  impression  originating  from  deceit  prac- 
tised on  the  testator,  it  will  be  void ;  but  where  the  testator  merely 
expresses  a  doubt  as  to  a  fact,  and  upon  that  doubt  revokes,  the  revo- 
cation would  seem  to  be  good.  6  Cruise's  Digest  (Greenl.  ed.),  tit.  38, 
c.  6,  §  26. 


62        rROCEEDINGS  IN  THE  PROBATE  COURTS. 

to  tear  a  bit  off,"  and  then  threw  it  on  the  fire,  it  was  held 
to  be  a  revocation,  though  the  will  fell  from  the  fire  and 
was  preserved,  slightly  singed,  by  another  person,  without 
the  testator's  knowledge.^  If  the  seal  be  torn  from  his 
will  by  the  testator  under  the  mistaken  impression  that  it 
is  an  essential  part  of  the  execution  of  the  instrument,  the 
intention  to  revoke  being  clear,  it  would  be  a  sufficient 
revocation.^ 

A  mere  declaration  of  an  intention  to  revoke  a  will,  not 
accompanied  nor  followed  by  any  act  in  fulfilment  of  that 
intention,  is  of  course  insufficient.^  And  there  may  be  a 
change  of  purpose  that  will  prevent  a  revocation,  even 
when  the  act  of  destruction  is  partly  accomplished.  A 
testator,  under  the  impulse  of  passion  against  his  devisee, 
tore  his  will  twice  through,  when  his  arms  were  seized  by 
a  bystander,  and  he  became  pacified  by  the  concessions  of 
the  devisee  ;  he  then  fitted  the  pieces  of  the  torn  will 
together,  and  remarked,  "  It 's  a  good  job  it  is  no  worse." 
This  was  held  to  be  no  revocation.*  The  declarations 
of  the  testator,  accompanying  the  act  of  revocation,  are 
admissible  in  evidence  to  explain  his  intentions.^ 

1  Bibb  V.  Thomas,  2  W.  Bl.  1043 ;  Doe  v.  Harris,  6  Ad.  &  El. 
209. 

2  Avery  v.  Pixley,  4  Mass.  460.  A  testator,  being  ill  in  bed,  called 
for  his  will,  and  one  of  the  legatees  named  in  the  will  deceived  him  by 
handing  him  an  old  letter  in  its  stead.  Held^  that  if,  from  the  rest  of 
the  testimony,  the  jury  believed  that  the  testator  destroyed  that  letter, 
thinking  it  to  be  his  will,  such  circumstances  would  amount  to  a  revo- 
cation.    Pryor  v.  Coggin,  17  Ga.  444. 

8  The  mere  direction  to  another  by  the  testator  to  de.stroy  his  will 
is  not  sufficient,  unless  some  act  of  destruction  is  thereupon  done. 
Giles  V.  Giles,  1  Cam.  &  Nor.  174;  Ford  v.  Ford,  7  Humph.  92. 

*  Doe  V.  Perks,  5  B.  &  Aid.  489;  Elms  v.  Elms,  1  Swa.  & 
Trist.   15.5. 

s  1  Greenl.  Ev.  §  273 ;  Dan  v.  Brown,  4  Co  wen,  490. 


KEVOCATION   OF    WILLS.  63 

It  is  to  be  observed  that  the  statute  requires  the  l)urn- 
ing,  tearing,  cancelling,  or  obliterating  to  be  by  the  tes- 
tator himself,  or  by  some  person  in  his  presence  and  by 
his  direction.  If,  therefore,  the  testator  requests  a  person 
who  has  the  custody  of  his  will  to  destroy  it,  and  it  is 
accordingly  destroyed,  such  destruction,  if  not  effected  in 
the  testator's  presence,  would  not  be  a  compliance  with 
the  terms  of  the  statute. 

If  the  will  is  found  obliterated  in  the  testator's  posses- 
sion, the  presumption  is  that  it  was  obliterated  by  him, 
and  the  burden  of  proving  the  contrary  is  on  the  party 
offering  it  for  probate ;  but  if  it  has  been  in  the  [)Ossession 
of  one  adversely  interested,  the  presumption  does  not  arise.^ 
If  the  will  is  proved  to  have  been  in  the  testator's  posses- 
sion and  cannot  be  found,  it  will  be  presumed  that  he 
destroyed  it  with  the  intention  of  revoking  it  ;2  but  if  it  is 
traced  out  of  his  custody,  the  party  asserting  the  revoca- 
tion must  show  that  it  came  again  into  such  custody. 

If  the  testator  executes  his  will  in  duplicate,  retaining 
one  part  and  committing  the  other  to  the  custody  of  another 
person,  and  then  destroys  one  part,  the  inference  generally 
is  that  he  intended  to  revoke  the  will ;  but  the  strength 
of  the  presumption  depends  much  on  the  circumstances. 
Thus,  if  he  destroys  the  only  copy  in  his  possession,  his 
intent  to  revoke  is  very  strongly  to  be  presumed  ;  if  he 
was  possessed  of  both  copies,  and  destroys  but  one,  it  is 
weaker  ;  and  if  he  alters  one  and  then  destroys  it,  retain- 

1  Baptist  Church  v.  Roberts,  2  Barr,  10;  Bennett  v.  Sherrod,  3  Ired. 
303 ;  Jones  r.  Murphy,  8  AVatts  &  Serg.  275. 

2  Davis  i\  Sigourney,  8  Met.  488;  Newell  v.  Homer,  120  Mass. 
277.  The  oral  declarations  of  the  testator  are  admissible  in  evidence 
to  rebut  this  presumption.  Sugdeu  v.  St.  Leonards,  Law  Rep.  1  P.  D. 
154. 


64        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

iiig  the  other  entire,  the  presumption  has  been  said  still 
to  hold,  but  weaker  still;  but  the  contrary  also  has  been 
asserted.^ 

Cases  have  occurred  where  a  will  has  been  revoked  and 
a  codicil  left  entire,  and  the  question  has  thereby  been 
raised  as  to  whether  the  revocation  of  the  will  has  a 
revoking  effect  upon  the  codicil  also.  If  from  its  con- 
tents the  codicil  appears  insej)arably  connected  with  the 
will,  it  will  be  held  to  be  revoked  ;  otherwise  if  it  is  inde- 
pendent of  and  unconnected  with  the  will.^ 

A  will  is  also  expressly  revoked  by  a  new  will  or  codicil, 
inconsistent  in  its  provisions  with  the  original  will,  or 
plainly  intended  as  a  substitute  for  it,  or  by  a  writing 
which  expressly  declares  an  intention  to  revoke."^  A  sub- 
sequent will  which  makes  a  new  disposition  of  the  whole 
estate  is  a  revocation  of  the  first,  without  any  words  of 
revocation  ;  but  if  the  subsequent  will  contains  no  clause 
of  revocation  and  makes  no  disposition  of  the  estate  in- 
consistent with  the  former  will,  it  does  not  operate  as 
a   revocation,    but   both    instruments    remain    in    force.* 

1  2  Greenl.  Ev.  §  682. 

2  Ibid.;  1  Jarm.  on  Wills  (6th  Am.  ed.),  139  et  seq. 

8  If  the  new  will  contained  a  clause  revoking  the  former  will,  and 
it  has  been  lost,  and  cannot  be  admitted  to  probate  for  want  of  evi- 
dence of  its  other  contents,  it  is  a  revocation,  and  may  be  set  up  in 
opposition  to  the  probate  of  the  earlier  will.  Wallis  v.  Wallis,  114 
Mass.  510 ;  Stickney  v.  Hammond,  138  Mass.  120 ;  Nelson  v.  McGiffert, 
3  Barb.  Ch.  158. 

When  the  intention  of  the  testator  to  revoke  his  will  appears  clearly 
from  a  subsequent  will,  it  is  a  sufficient  revocation,  although  such  sub- 
sequent will  is  inoperative  on  account  of  the  incapacity  of  the  devisee 
to  take  under  it.     Laughton  v.  Atkins,  1  Pick.  545. 

4  Cutto  V.  Gilbert,  29  Eng.  Law  &  Eq.  64;  s  c.  9  Moore,  P.  C.  131. 
"  The  mere  fact  of  making  a  subsequent  testamentary  paper  does  not 
work  a  total  revocation  of  a  prior  one,  unless  the  latter  expressly,  or  in 
effect,  revoke  the  former,  or  the  two  are  incapable  of  standing  together; 


REVOCATION    OF    WILLS.  65 

Where  it  appeared  that  the  testator  made  a  second  will, 
the  contents  of  which  uxre  unknown,  it  was  held  not  to  be 
a  revocation  of  the  first,  because  it  did  not  appear  either 
that  it  contained  a  revocatory  clause  or  made  a  diffci-ent 
disposition  of  the  estate.  And  where  it  was  found  that 
tlie  testator  made  a  second  will  different  from  the  first, 
hut  it  loas  not  found  in  what  the  difference  consisted,  it  was 
held  to  be  no  revocation.^  Tiie  burden  is  on  the  party 
offering  the  second  will  to  show  that  it  expressly  revokes 
the  former  will,  or  has  different  contents;  the  mere  words, 
"  this  is  the  last  will  of  me,"  etc.,  are  not  sufficient  for  that 
purpose.^ 

If  the  subsequent  instrument,  whether  it  be  a  will  or 
codicil,  disposes  of  a  part  of  the  estate  only,  although  it 
professes  an  intent  to  dispose  of  the  whole,  it  is  only  a 

for  though  it  be  a  maxim,  as  Swinburne  says  above,  that  as  no  man 
can  die  with  two  testaments,  yet  any  number  of  instruments,  whatever 
be  their  relative  date,  or  in  whatever  form  they  may  be  (so  that  they 
be  all  clearly  testamentary),  may  be  admitted  to  probate,  as  together 
containing  the  last  will  of  the  deceased.  And  if  a  subsequent  testa- 
mentary paper  be  partly  inconsistent  with  one  of  an  earlier  date,  then 
such  latter  instrument  will  revoke  the  former,  as  to  those  parts  only 
where  they  are  inconsistent."  1  Williams  on  Executors  (7th  Am. 
ed.),  212. 

''  The  will  of  a  man  is  the  aggregate  of  his  testamentary  intentions, 
so  far  as  they  are  manifested  in  writing,  duly  executed  according  to 
the  statute.  And  as  a  will,  if  contained  in  one  document,  may  be  of 
several  sheets,  so  it  may  consist  of  several  independent  papers,  each 
so  executed."  By  Sir  J.  P.  Wilde,  in  Lemage  v.  Goodban,  L.  R.  1  P. 
&  D.  57;  Dempsey  v.  Lawson,  2  P.  D.  08. 

1  6  Cruise's  Digest  (Greenleaf),  tit.  38,  c.  6,  §§  11,  14,  and  cases 
there  cited.  This  rule  is  applied,  even  if  it  is  found  that  the  second 
will  was  stolen  from  the  testator  or  destroyed  by  fraud.  Ibid.,  note. 
But  when  the  second  will  is  missing,  parol  evidence  of  its  contents 
may  be  oifered.  2  Greenl.  Ev.  §  688.  But  such  evidence  must  be 
strong  and  conclusive.     Cutto  v.  Gilbert,  29  Eng.  Law  &  Eq.  64. 

2  Cutto  V.  Gilbert,  29  Eng.  Law  &  Eq. 

5 


66        PKOCEEDINGS  IN  THE  PEOBATE  COURTS. 

revocation  pro  tanto,  unless  it  contains  words  expressing 
the  intention  to  revoke.^ 

A  revocatory  writing,  intended  for  the  express  purpose 
of  revoking  a  will,  must  be  signed  by  the  testator,  or  by 
some  person  in  his  presence  and  by  his  express  direction, 
and  attested  and  subscribed  in  his  presence  by  three  or 
more  competent  witnesses.  The  manner  of  execution  is 
the  same  prescribed  by  statute  for  the  execution  of  wills.^ 
If  such  writing  is  made  in  another  state  or  country,  it 
may  be  executed  in  the  manner  prescribed  for  the  execu- 
tion of  wills  in  such  other  state  or  country .^  If  the  writ- 
ing declares  merely  an  intention  to  do  some  future  act  of 
revocation,  it  will  not  amount  to  a  revocation  ;  it  must 
be  a  present  actual  revocation.* 

The  obliteration  by  a  testator  of  a  portion  of  his  will, 
with  the  intention  of  revoking  the  obliterated  portion  only, 
is  a  valid  revocation  of  the  part  erased.  The  other  pro- 
visions of  the  will  will  not  be  revoked ;  and  the  instru- 
ment, the  obliterated  parts  excepted,  may  be  admitted  to 
probate  as  the  will  of  the  testator.^ 

If  a  will  which  contains  a  clause  revoking  former  wills 
is  cancelled,  an  earlier  will,  which  has  not  been  destroved, 


^  Brant  v.  Wilson,  8  Cowen,  56 ;  Harwood  v.  Goodright,  Cowp.  87. 

2  Reid  V.  Borland,  14  Mass.  208  ;  Laughton  v.  Atkins,  1  Pick.  542. 
An  instrument  containing  a  clause  of  revocation  is  not  admissible 

in  evidence  to  prove  the  revocation  of  a  prior  will  until  probated. 
Laughton  v.  Atkins,  1  Pick.  .585 ;  Sewall  v.  Robbins,  139  Mass.  164. 
If  probate  of  it  is  refused,  it  is  inadmissible  as  evidence  of  revocation. 
Stickney  v.  Hammond,  1-38  Mass.  116. 

3  Bayley  v.  Bailey,  5  Cush.  245;  Crippen  v.  Dexter,  13  Gray,  332. 
*  Brown  v.  Thorndike,  15  Pick.  388. 

5  Bigelow  r.  Gillott,  123  Mass.  102;  Sutton  v.  Sutton,  2  Cowp.  812; 
Larkins  v.  Larkins,  3  B.  &  P.  16 ;  Short  v.  Smith,  4  East,  418 ;  Mence 
r.  Mence,  18  Ves.  348. 


EEVOCATION   OF   WILLS.  67 

will  not  be  revived,  unless  there  is  affirmative  evidence 
that  the  testator  intended  to  revive  the  earlier  will  by 
such  cancellation.  His  oral  declarations  are  admissible 
in  evidence  for  the  purpose  of  showing  his  intention. ^ 

Another  class  of  revocations  is  that  implied  by  law  from 
changes  occurring  in  the  condition  and  circumstances  of 
the  testator  subsequent  to  the  execution  of  his  will.  Such 
revocations  are  founded  on  the  reasonable  presumption 
that  his  will  would  have  been  differently  made  under 
such  different  circumstances.  Under  the  common  law  the 
marriage  of  a  man  will  not  revoke  his  will ;  nor  will  his 
will  made  after  marriage  be  revoked  by  the  birth  of  a 
child  ;  but  the  rule  is  established  that  the  concurrence  of 
marriage  and  the  birth  of  a  child,  after  the  execution  of 
the  will,  works  an  entire  revocation  ;  ^  and  the  rule  applies 
to  posthumous  children.^  It  has  been  decided  that  parol 
evidence  of  the  intention  of  the  testator,  that  his  will 
should  stand  unrevoked,  is  inadmissible  to  control  the 
presumption  resulting  from  marriage  and  the  birth  of 
children.*  The  rule  does  not  apply  to  cases  where  it 
appears  that  the  changes  in  the  testator's  circumstances 
and  obligations  were  anticipated  and  provided  for  by  the 
will,  as  when  the  will  makes  provision  for  the  future  wife 

1  Pickens  v.  Davis,  IM  Mass.  252;  Lane  v.  Moore,  151  Mass.  90. 
Cancellation  of  a  will,  with  intent  to  revive  a  former  will,  will  be 
effective  without  further  republication  of  the  earlier  will.  Williams 
V.  Williams,  152  Mass.  515. 

2  Warner  v.  Beach,  4  Gray,  163 ;  Brush  v.  Wilkins,  4  Johns.  Ch. 
506;  Havens  v.  Vandenburg,  1  Denio,  27;  Swan  v.  Hammond,  138 
Mass.  46 ;  Nutt  v.  Norton,  142  Mass.  242. 

3  Doe  V.  Lancashire,  5  T.  R.  49.  It  is  the  same  if  the  testator  died 
without  knowledge  of  the  fact  that  his  wife  was  pregnant.  Christopher 
V.  Christopher,  4  Bur.  2182;  or  if  the  child  died  in  the  testator's 
lifetime.     Wright  v.  Netherwood,  2  Salk.  593. 

*  Marston  v.  Roe,  8  Add.  &  El.  14 ;  Doe  v.  Lancashire,  supra. 


68        PROCEEDINGS  IN  THE  PKOBATE  COURTS. 

and  issnc,^  but  provision  for  the  wife  only  has  been  held 
insufficient.^  But  bv  statute  1892,  c.  118,  which  took  effect 
July  1,  1892,  (now  embodied  substantially  in  R.  L.  c.  135, 
§  9),  it  was  provided  that  "the  marriage  of  any  person 
shall  act  as  the  revocation  of  any  will  made  by  such 
person  previous  to  such  marriage,  unless  it  shall  appear 
from  the  will  itself  that  the  will  was  made  in  contempla- 
tion of  such  marriage,  or  unless  and  except  so  far  as  the 
will  is  made  in  exercise  of  a  power  of  appointment,  and 
the  estate  thereby  appointed  would  not,  in  default  of 
appointment,  pass  to  the  persons  that  would  have  been 
entitled  to  the  same  if  it  had  been  the  testator's  own 
estate  and  he  or  she  had  died  without  disposing  of  it  by 
will."  ^  The  marriage  of  a  single  woman  has  been  held 
to  be  an  absolute  revocation  of  her  will,*  even  though  her 
testamentary  capacity  was  subsequently  restored  by  the 
event  of  her  surviving  her  husband  ;  ^  but  on  this  point 
doubts  have  been  expressed,  it  being  questioned  whether 
her  marriage  worked  a  revocation,  or  merely  a  suspension. 
An  alteration  in  the  estate  of  lands  devised  by  the  act 
of  the  devisor  may  operate  as  an  implied  revocation  of  his 
will.  A  conveyance  of  the  estate  devised  is  a  revocation 
of  the  devise;  under  such  circumstances  there  is  nothing 
left  upon  which  the  devise  can  operate.     But  the  convey- 

1  Kennebel  v.  Scrafton,  2  East,  530. 

2  Marston  v.  Roe,  8  Add.  &  El.  14. 

3  TngersoU  v.  Hopkins,  170  Mass.  401. 

*  Swan  V.  Hammond,  138  Mass.  47;  Blodgett  v.  Moore,  141  Mass. 
75;  Nutt  V.  Norton,  142  Mass.  252.  But  a  will  maybe  effective  as 
the  execution  of  a  power  of  appointment  contained  in  an  ante-nuptial 
agreement,  notwithstanding  a  subsequent  marriage ;  and  such  will,  in 
so  far  as  it  is  the  execution  of  the  power  contained  in  the  agreement, 
should  be  allowed;  but  such  allowance  will  be  a  qualified  or  limited 
allowance.     Osgood  v.  Bliss,  141  Mass.  474. 

5  1  Jarm.  on  Wills  (6th  Am.  ed.),  34,  57. 


REVOCATION    OF   WILLS.  69 

ance,  to  effect  an  entire  revocation,  must  be  of  the  whole 
estate  devised.  If  it  is  of  but  part  of  the  estate,  it  is  a 
revocation  only  to  the  extent  of  the  conveyance.^  The 
partition  of  an  estate  between  tenants  in  common  does 
not  operate  as  a  revocation  of  a  prior  devise  made  by  one 
of  the  tenants  of  his  sliare. 

Entire  revocations  by  implication  of  law  are  limited  to 
a  very  small  number  of  cases.  The  statute  does  not  inti- 
mate what  changes  in  the  condition  and  circumstances  of 
the  testator  are  intended  to  work  a  revocation,  but  leaves 
them  to  be  decided  by  the  general  rules  of  law ;  and  the 
reported  cases  furnish  but  little  information  as  to  the 
effect  of  changes  in  the  testator's  condition  except  as 
regards  marriage  and  the  birth  of  children,  and  altera- 
tion in  the  estate  devised.  It  has  been  held  that  revoca- 
tion cannot  be  implied  from  the  long-continued  insanity 
of  the  testator  from  soon  after  the  making  of  his  will 
until  his  death  ;^  nor  from  the  large  increase  in  value  of 
his  property  subsequent  to  the  making  of  his  Avill,  although 
such  increase  altogether  changes  the  proportion  between 

^  Hawes  v.  Humphrey,  9  Pick.  350;  Ballard  v.  Carter,  5  Pick.  112; 
Webster  v.  Webster,  105  Mass.  538. 

For  the  rules  as  to  revocation  by  alteration  of  estate,  see  6  Cruise's 
Digest  (Greenleaf's  ed.),  tit.  38,  c.  6,  §  58  et  seq. 

2  Revocation  of  a  will  cannot  be  implied  from  the  birth  of  a  child 
to  the  testator,  contemplated  in  the  will ;  the  death  of  the  testator's 
wife,  and  of  another  child,  leaving  issue;  the  testator's  insanity  for 
forty  years,  from  soon  after  the  making  of  his  will  till  his  death;  and 
a  fourfold  increase  in  the  value  of  his  property,  so  as  greatly  to  change 
the  proportion  between  the  specific  legacies  given  to  some  children 
and  the  shares  of  otlier  children  who  wei'e  made  residuary  legatees. 
Warner  v.  Beach,  4  Gray,  162. 

"  It  is  not  apparent  that  an  entire  revocation  by  implication  of  law 
results  from  any  change  of  condition  or  circumstances,  except  that  of 
a  subsequent  marriage."     Swan  v.  Hammond,  138  Mass.  47. 


70        rROCEEDINGS  IN  THE  PROBATE  COURTS. 

the   specific   legacies   and    the   shares    of    the   residuary 
legatees.^ 


Section  VIII. 

PROBATE  OF  WILLS  —  FORMAL  PROCEEDINGS. 

The  will  to  be  proved  should  be  filed  in  the  probate 
office  of  the  county  of  which  the  deceased  was  an  inhabit- 
ant, or  in  which  he  was  resident  at  the  time  of  his  death.^ 

1  Warner  v.  Beach,  4  Gray,  162.  "  Though  the  testament  be  made 
in  time  of  sickness  and  peril  of  death,  when  the  testator  doth  not  hope 
for  life,  and  afterwards  he  recover  his  health,  yet  is  not  the  testament 
revoked  by  such  recovery,  or  albeit  the  testator  make  his  testament 
by  reason  of  some  great  journey,  yet  it  is  not  revoked  by  his  return." 
Swinburne,  Pt.  7,  §  15. 

For  a  general  review  of  the  decided  cases  upon  the  subject  of  im- 
plied revocations,  see  1  Saunders  (Williams),  278,  note. 

2  If  upon  the  decease  of  any  person  leaving  an  estate  liable  to  a 
tax  on  collateral  legacies  and  successions,  a  will  disposing  of  such  es- 
tate is  not  oifered  for  probate,  or  an  application  for  administration 
made  within  four  months  from  the  time  of  such  decease,  the  proper 
probate  court,  upon  application  by  the  treasurer  of  the  commonwealth, 
shall  appoint  an  administrator.     R.  L.  c.  15,  §  18. 

A  person  non  compos,  born  in  the  county  of  Suffolk,  removed,  upon 
the  death  of  her  father,  into  the  county  of  Middlesex,  where  she  lived 
as  part  of  her  brotlier's  family  many  years  and  until  her  death,  being 
for  the  last  years  of  her  life  under  a  guardian  who  provided  for  her 
support,  whose  residence  was  in  Suffolk.  Held,  that  her  domicile  at 
the  time  of  her  death  was  in  Middlesex,  and  that  letters  of  adminis- 
tration on  her  estate,  granted  by  the  judge  of  probate  in  Suffolk,  were 
void  for  want  of  jurisdiction.  Holyoke  v.  Haskins,  5  Pick.  20  ;  Hard- 
ing I'.  Weld,  128  Mass.  591. 

Where  a  citizen,  having  lived  many  years  at  W.,  in  the  county  of 
M.,  purchased  and  furnished  a  house  at  B.,  in  the  county  of  S.,  and 
afterwards  with  his  family  spent  his  summers  at  his  house  in  W., 
where  he  continued  to  pay  his  taxes,  and  his  winters  in  B.,  where  he 
died,  it  was  held  that  probate  of  his  will  might  be  taken  in  the  county 
of  M.     Whether  probate  in  the  county  of  S.  would  not  have  been 


PROBATE   OF  WILLS.  71 

With  the  will  there  must  be  filed  a  petition,  signed  by  the 
executor  or  other  person  who  offers  the  will  for  probate, 
and  addressed  to  the  judge  of  the  probate  court,  setting 
forth  the  place  where  the  testator  last  dwelt,  the  date 
of  his  death,  the  fact  that  he  left  a  will,  and  praying  that 
the  will  be  allowed.  The  full  name  of  the  widow  of  the 
deceased,  if  any,  and  the  names,  residences,  and  relation- 
ship of  his  heirs-at-law  and  next  of  kin  should  also  be 
stated  in  the  petition.  If  the  next  of  kin  are  minors,  the 
fact  should  be  stated,  and  if  they  are  under  guardianship, 
the  name  and  residence  of  the  guardian  should  be  given.^ 

If  the  executor  named  in  the  will  declines  the  trust,  his 
declination  in  writing  should  be  filed  with  the  will. 

NOTICE   TO   PERSONS   INTERESTED. 

Upon  such  petition,  a  citation  is  issued  by  the  register 
of  probate  to  the  heirs-at-law  of  the  deceased,  and  all 
persons  interested  in  his  estate,  to  appear  at  a  day  named 
and  show  cause,  if  any  they  have,  why  the  will  should  not 
be  allowed.  The  statute  provides  no  form  of  serving  the 
citation,  nor  does  it  provide  in  terms  that  any  notice 
shall  be  given.  The  usual  practice  is  to  order  notice  to 
be  given  by  publishing  an  attested  copy  of  the  citation 
in  some  newspaper  printed  in  the  county .^     The  person 

valid  likewise,  qucere.  Harvard  College  v.  Gore,  o  Pick.  370  ;  Thayer 
V.  Boston,  124  Mass.  145.     See  Harding  v.  Weld,  128  Mass.  590. 

1  To  the  petition  must  be  appended  the  certificate,  under  oath  of 
the  petitioner,  that  the  statements  made  therein  are  true  to  the  best 
of  his  knowledge  and  belief.     R.  L.  c.  1.36,  §  1. 

2  Any  daily  or  weekly  periodical  devoted  exclusively  to  legal  news, 
which  has  been  published  in  the  commonwealth  for  six  consecutive 
months,  shall  be  deemed  a  newspaper  for  the  insertion  of  legal  notices 
required  by  law,  if  the  publication  of  such  notice  in  such  periodical  is 
ordered  by  the  court.     R.  L,  c  8,  §  5,  cl.  13. 


72        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

presenting  the  will  may  designate  the  paper  in  which  the 
citation  shall  be  published  ;  but  if  the  judge  deems  the 
paper  so  designated  insufficient  to  give  due  publicity, 
he  may  order  the  publication  in  one  other  newspaper.^ 
The  will  is  not  required  to  be  filed  on  a  day  when  the 
probate  court  is  held,  but  it  may  be  filed  and  the  citation 
issued  on  any  day.  The  party  offering  the  will  for  probate 
must  serve  the  citation  in  accordance  with  its  terms,  and 
must  make  his  return  of  the  fact  of  service  under  oath, 
on  or  before  the  day  fixed  for  the  hearing. 

Formal  notice  is  dispensed  with  when  the  heirs-at-law 
and  all  persons  interested  in  the  estate  of  the  deceased 
assent  to  the  granting  of  the  petition  or  waive  notice  of 
the  pendency  of  the  petition,  and  the  judge  is  satisfied 
that  no  person  interested  intends  to  object  to  the  probate 
of  the  will.  Such  assent  or  waiver  must  be  in  writing  and 
signed  by  all  the  heirs-at-law,  and  should  be  annexed  to 
the  petition. 2 

THE  HEARING — EVIDENCE    OF    THE    SUBSCRIBING    WITNESSES. 

If  it  appears  to  the  probate  court,  by  the  consent  in 
writing  of  the  heirs,  or  by  other  satisfactory  evidence,  that 
no  person  interested  in  the  estate  of  a  person  deceased 
intends  to  object  to  the  probate  of  an  instrument  purport- 
ing to  be  the  will  of  such  deceased  person,  the  court  may 
grant   probate  thereof   upon   the   testimony  of   one   only 

1  The  same  rule  applies  to  the  publication  of  other  notices  and 
citations  issued  by  the  probate  courts.     R.  L.  c.  162,  §  47. 

"^  In  any  proceeding  in  a  probate  court  the  notice  required  by  law 
may  be  dispensed  with  when  all  parties  entitled  thereto  signify  in 
writing  their  assent  to  such  proceeding,  or  waive  notice.  R.  L.  c.  162, 
§  45.  Dexter  v.  Cotting,  149  Mass.  96;  Browne  v.  Doolittle,  151 
Mass.  597. 


PROBATE   OF   WILLS.  73 

of  the  subscribing  witnesses ;  and  the  affidavit  of  such 
witness  taken  before  the  register  of  probate,  may  be 
received  as  evidence.^  But  if  it  does  not  so  appear,  all 
the  subscribing  witnesses,  if  they  are  within  the  state, 
must  be  produced  at  the  time  and  place  named  in  the 
citation.  If  there  is  a  codicil  to  be  proved,  the  witnesses 
who  attested  it  must  also  be  present.  The  subscribing 
witnesses,  being  considered  in  law  as  placed  near  the 
testator  to  ascertain  and  judge  of  his  capacity,  the  party 
objecting  to  the  probate  of  the  will  has  a  right  to  insist 
upon  the  testimony  of  all  of  them,  if  they  can  be  pro- 
duced.2  Every  clerk  of  a  court  of  record  and  every 
justice  of  the  peace  may  issue  summonses  to  procure  the 
attendance  of  the  witnesses. 

If  it  appears  that  a  subscribing  witness  is  dead,  evidence 
is  admissible  to  prove  his  handwriting.^  If,  having  been 
competent  at  the  time  of  his  attestation,  a  witness  has 
since  become  insane,  or  disqualified  by  reason  of  convic- 
tion of  an  infamous  crime,  or  otherwise,  his  handwriting 
may  be  proved  as  if  he  were  dead  ;  but  the  fact  of  his 
incompetency  must  first  be  shown.  If  the  witness  cannot 
be  found  or  resides  out  of  the  state,  his  handwriting  may 
be  proved,  but  it  must  first  appear  that  a  diligent  search, 
satisfactory   to   the   court   under   the   circumstances,  has 

1  R.  L.  c.  136,  §  2. 

2  Chase  v.  Lincoln,  3  Mass.  236.  There  is  no  rule  of  law  which 
requires  that  all  of  the  attesting  witnesses  shall  be  examined  at  the 
outset.  The  order  in  which  witnesses  shall  be  called  is  a  matter  of 
discretion  with  the  court ;  but  all  of  the  attesting  witnesses  should  be 
called  before  the  proponent  of  a  will  closes  his  case  in  chief.  Howes 
I'.  Colburn,  165  Mass.  385. 

8  Nickerson  v.  Buck,  12  Cush.  332;  Chase  v.  Kittredge,  11  Allen, 
52;  Dean  v.  Dean's  Heirs,  1  Williams  (Vt.)  746;  Jackson  v.  Luquere, 
5  Cowen,  221  ;  Jackson  v.  Le  Grange,  19  Johns.  386. 


74        PROCEEDINGS  IN  THE  PROBATE  COUKTS, 

been  made  for  him.  An  indifferent  inquiry,  that  leaves 
the  matter  in  doubt,  is  not  sufficient  to  let  in  secondary- 
evidence  of  his  attestation.  In  accounting  for  the  absence 
of  such  a  witness,  answers  to  inquiries  made  of  persons 
supposed  to  be  able  to  give  information  of  him  may  be 
given  in  evidence.^  If  an  attesting  witness  who  made 
his  mark  is  dead,  his  mark  must  be  proved  to  be  his, 
and  for  this  purpose  evidence  is  admissible  to  show  that 
the  witness  lived  near  the  testator,  that  he  could  not 
write,  and  that  no  other  person  of  the  same  name  lived  in 
the  same  neighborhood ;  and  this  evidence  has  been  held 
sufficient  to  prove  the  attestation.^  Proof  of  the  hand- 
writing of  a  deceased  attesting  witness  is  prima  facie  evi- 
dence that  he  duly  and  properly  attested  the  will ;  ^  but 
the  fact  that  he  attested  the  will  is  not  evidence  that  he 
believed  the  testator  to  be  sane.*  Where  all  the  wit- 
nesses were  dead,  and  no  proof  of  their  handwriting  could 
be  found,  proof  of  the  testator's  handwriting  was  received 
as  sufficient.^ 

1  1  Greenl.  Ev.  §  574. 

2  Doe  V.  Caperton,  9  Carr.  &  P.  59.  In  this  case  the  will  was 
attested  by  the  signature  of  V.  and  the  marks  of  Charles  and  Mary 
Drinkwater,  and  all  were  dead.  V.'s  handwriting  was  proved,  and  Mary 
Drinkwater  testified  :  "  I  am  the  daughter  of  Charles  and  Mary  Drink- 
water  ;  they  are  both  dead ;  they  lived  near  the  testator ;  my  mother 
could  not  write,  and  my  father  wrote  his  name  only ;  no  other  Charles 
Drinkwater  and  no  other  Mary  Drinkwater  lived  anywhere  in  that 
neighborhood."  The  evidence  "was  held  sufficient.  In  Jackson  v. 
Van  Dusen,  the  witness  made  his  initials,  which  were  proved.  5  Johns. 
144. 

8  Nickerson  v.  Buck,  12  Cush.  332 ;  Chase  i\  Kittredge,  11  Allen,  52. 

*  Baxter  v.  Abbott,  7  Gray,  71. 

s  Duncan  v.  Beard,  2  Nott  &  McCord,  400.  Experts  may  testify 
to  their  opinion  of  the  genuineness  of  the  testator's  signature,  and 
may  give  their  reasons  for  such  opinion.  Demerritt  v.  Randall,  116 
Mass.  331. 


PKOBATE   OF   WILLS.  75 

It  sometimes  occurs,  particularly  where  the  will  has 
been  made  many  years  before  it  is  offered  for  probate,  that 
an  attesting  witness  does  not  retain  a  clear  recollection 
of  the  circumstances  attending  the  execution  of  the  instru- 
ment, and  in  such  cases  less  strictness  of  proof  is  some- 
times required.  In  Dewey  v.  Dewey ,^  one  of  the  witnesses 
testified  that  his  name,  which  was  upon  the  will,  appeared 
to  be  his  signature,  but  that  he  recollected  nothing  about 
it.  One  of  the  other  witnesses  testified  that  the  first 
witness  did  subscribe  in  the  testator's  presence,  and  this 
was  held  sufficient.  Dewey,  J.,  said:  "The  question  is 
not  whether  this  witness  now  recollects  the  circumstance 
of  the  attestation,  and  can  state  it  as  a  matter  within  his 
memory.  If  this  were  requisite,  the  validity  of  a  will 
would  depend,  not  upon  the  fact  whether  it  was  duly  exe- 
cuted, but  whether  the  testator  had  been  fortunate  in 
securing  witnesses  of  retentive  memories.  The  real  ques- 
tion is,  whether  the  witness  did  in  fact  properly  attest  it."^ 
In  the  absence  of  evidence  to  the  contrary,  it  has  been 
presumed  from  the  fact  of  attestation  that  the  requisites 
of  the  statute  have  been  complied  with.^ 

If  a  subscribing  witness  should  deny  the  execution  of 
the  will,  he  may  be  contradicted  as  to  that  fact  by  another 
subscribing  witness  ;  and  even  if  they  should  all  swear 
that  the  will  was  not  duly  executed,  the  party  offering  the 
will  would  be  allowed  to  go  into  circumstantial  evidence 
to   prove   its    due   execution.     But   where    the   attesting 

1  1  Met.  349. 

*  Two  of  the  three  witnesses  of  a  will  nearly  thirty  years  old  were 
dead,  and  their  signatures  were  proved  ;  the  third  recognized  his  sig- 
nature, but  had  no  recollection  of  the  transaction.  The  will  was 
allowed.     Verdier  v-  Verdier,  8  Rich.  (S.  C)  135. 

*  Clark  V.  Dunnevant,  10  Leigh,  13. 


76        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

witnesses  so  deny  their  attestation,  the  evidence,  to  give 
effect  to  the  will,  must  be  very  clear. ^  And  where  a  wit- 
ness has  sworn  that  the  testator  was  not  of  sound  mind, 
his  testimony  has  been  successfully  met  by  the  evidence 
of  other  persons  ;  and  wills  have  been  established  notwith- 
standing the  adverse  testimony  of  all  the  subscribing 
witnesses.^ 

The  due  execution  of  the  instrument  and  the  testamen- 
tary capacity  of  the  testator  having  been  established  by 
the  party  offering  the  will  for  probate,  the  burden  is  upon 
the  persons  opposing  the  probate  to  sustain  their  objec- 
tions.^ The  rules  observed  as  to  the  usual  defences  of 
fraud,  undue  influence,  and  revocation  have  been  con- 
sidered in  previous  sections  of  this  chapter. 

No  particular  form  of  words  is  necessary  to  constitute 
a  valid  will.  It  may  be  admitted  to  probate,  however 
inartificial  it  may  be  in  expression,  provided  it  bears  the 
character  and  is  executed  according  to  the  requisites  of  a 
will.  A  valid  testamentary  paper  may  be  in  the  form  of 
a  deed  or  a  letter.* 

It  is  no  objection  to  the  validity  of  a  will  or  codicil  that 
it  only  appoints  an  executor.^ 

A  codicil  written  on  a  separate  paper,  not  known  to 
the  parties  to  be  in  existence  at  the  time  of  the  probate  of 

1  See  Jackson  v.  Christman,  4  Wend.  282 ;  Handy  v.  The  State, 
7  Harr.  &  John.  42. 

2  See  Peebles  v.  Case,  2  Bradf .  226  ;  Jauncey  v.  Thorne,  2  Barb.  Ch. 
40  ;  Bennett  r.  Sharp,  33  Eng.  Law  &  Eq.  618;  Kinliside  v.  Harrison, 
2  Phill.  449  ;  Le  Breton  v.  Fletcher,  2  Hagg.  568  ;  Landon  v.  Howard, 
2  Addams,  245  ;  Howard's  Will,  5  Monr.  199. 

8  Baldwin  v.  Parker,  99  Mass.  79  ;  Beatty  v.  Fishel,  100  Mass, 
449. 

*  Bayley  v.  Bailey,  5  Cash.  260. 
6  Sumner  v.  Crane,  155  Mass.  483. 


PROBATE    OF   WILLS.  77 

the  will,  may  be  subsequently  admitted  to  probate.  So 
may  a  codicil  written  on  the  back  of  the  same  leaf  on 
which  the  will  was  written,  if  such  codicil  escaped  atten- 
tion at  the  time  of  the  original  probate.^ 

If  a  will  duly  executed  and  witnessed  incorporates  in 
itself,  by  reference,  any  document  or  paper  not  so  executed 
and  witnessed,  sucli  document  or  paper,  if  it  was  in  exist- 
ence at  the  time  of  the  execution  of  the  will  and  is  iden- 
tified as  the  paper  referred  to  therein,  takes  effect  as  part 
of  the  will,  and  is  to  be  admitted  to  probate  as  such.^ 
And  if  by  mistake  such  paper  was  not  presented  for  probate 
with  the  will,  it  may  be  subsequently  admitted  to  probate.^ 

The  burden  is  on  the  proponent  to  show  that  alterations 
or  interlineations  were  made  before  the  execution  of  the 
will.4 

Upon  the  allowance  of  the  will,  if  no  appeal  is  taken, 
and  if  there  is  an  executor  named  in  the  will  who  is 
competent  and  willing  to  accept  the  trust,  letters  testa- 
mentary will  issue  to  him  upon  his  giving  a  sufficient  bond 
for  the  faithful  discharge  of  his  trust.  If  there  is  no 
executor  named  in  the  will,  or  if  the  executor  therein 
named  declines  the  trust,  or  is  incompetent,  some  suit- 
able person  will  be  appointed  administrator  with  the  will 
annexed,^ 

1  Waters  v.  Stickney,  12  Allen,  1;  Gale  i:  Nickerson,  144  Mass.  416. 
A  codicil  may  be  allowed  on  appeal  that  was  not  offered  below.  Clark 
V.  Wright,  3  Pick.  67  ;  Waters  r.  Stickney,  12  Allen,  1. 

"^  Newton  v.  Seaman's  Friend  Society,  130  Mass.  91. 

*  Tbid.  It  is  no  objection  to  the  probate  of  a  will  that  the  testator 
agreed  to  make  a  different  will,  or  that  the  will  offered  for  probate 
revokes  a  will  carrying  out  the  agreement.  Sumner  v.  Crane,  155 
Mass.  483. 

*  Wilton  V.  Humphreys,  176  Mass.  2.53. 

5  As  to  granting  administration,  see  chap.  v. 


78        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Section  IX. 

PROOF   OF   WILLS   MADE    OUT   OF   THE   STATE. 

A  will  which  is  made  out  of  this  commonwealth  and  is 
valid  according  to  the  laws  of  the  state  or  country  in 
which  it  was  made,  may  be  proved  and  allowed  in  this 
commonwealth  and  shall  thereupon  have  the  same  effect 
as  if  it  had  been  executed  according  to  the  laws  of  this 
commonwealth.^  This  provision  includes  nuncupative 
wills.^ 

In  such  cases  the  same  certainty  of  proof  is  required  as 
when  the  will  is  made  in  this  state,  but  the  particular 
facts  to  be  proved  in  support  of  the  will  must  depend  upon 
the  requirements  of  the  local  laws  of  the  state  or  country 
in  which  the  will  may  have  been  executed.^  It  must  be 
proved  that  all  the  formalities  of  execution  made  necessary 
by  the  local  law,  whatever  they  may  be,  were  duly  observed. 
The  rules  as  to  the  testator's  soundness  of  mind  and  the 
"  presence  "  of  the  testator  are  of  general  application,  and 
the  formal  proceedings  in  probate  court  are  the  same  as  in 
cases  of  wills  made  in  this  state.* 

1  R.  L.  c.  135,  §  5. 

2  Slocomb  V.  Slocomb,  13  Allen,  38. 

8  Bayley  v.  Bailey,  5  Cush.  245  ;  Crippen?).  Dexter,  13  Gray,  332. 

*  If  an  insane  person,  of  sufficient  mental  capacity  to  change  his 
domicile,  in  good  faith  removes  his  residence  to  another  state  pending 
proceedings  here  for  the  appointment  of  a  guardian  over  him,  and  if 
his  residence  there  continues  until  his  death,  and  is  assented  to  by  his 
guardian  after  his  appointment,  he  is  such  a  resident  of  that  state  that 
its  courts  have  jurisdiction  of  the  original  probate  of  his  will.  Talbot 
V.  Chamberlain,  149  Mass.  57. 


PROOF  OF   LOST   WILLS.  79 

Section  X. 

PROOF   OF   LOST   WILLS. 

A  will,  proved  to  have  been  duly  executed,  which  cannot 
be  found  after  the  testator's  death,  is  presumed  to  have 
been  destroyed  by  him  with  the  intention  of  revoking  it ; 
but  this  presumption  may  be  rebutted  by  evidence.^  It 
may  be  that  the  will  was  destroyed  by  the  testator  in  a  fit 
of  insanity,  or  that  it  was  lost,  or  accidentally  or  fraudu- 
lently destroyed-  Such  accidental  or  fraudulent  destruc- 
tion will  not  deprive  parties  of  their  rights  under  its 
provisions,  if  they  can  produce  the  evidence  necessary  to 
establish  the  will.^ 

The  fact  that  the  will  was  made  by  the  testator  must  be 
proved,  and  it  must  be  shown  that  in  its  execution  the 
provisions  of  the  statute  were  complied  with.  If  the  fact 
of  its  destruction  is  not  clearly  proved,  it  must  be  shown, 
to  the  satisfaction  of  the  court,  that  it  has  been  lost.  It 
must  appear  that  an  honest  and  diligent  search  has  been 
unsuccessfully  made  for  it  in  the  place  or  places  where  it 

1  Davis  V.  Sigourney,  8  Met.  487  ;  Clark  v.  Wright,  3  Pick.  67; 
Idley  u.  Bowen,  11  Wend.  227.  "The  presumption  may  be  repelled, 
nor  does  it  require  evidence  amounting  to  positive  certainty,  but  only 
such  as  reasonably  produces  moral  conviction."  Sir  John  NichoU,  in 
Davis  V.  Davis,  2  Add.  226.  The  presumption  may  be  rebutted  by 
probable  circumstances,  among  which  declarations  of  unchanged 
affection  and  intention  have  much  weight.  Patten  r.  Poulton,  1  Swa. 
&  Trist.  55. 

The  declarations  of  the  testator  are  admissible  to  show  that  he 
had  no  will,  or  had  or  had  not  destroyed  it.  Durant  v.  Ashmore, 
2  Rich.  184;  Johnson's  Will,  40  Conn.  587  ;  State  v.  Price,  5  B. 
Monr.  63. 

'^  A  codicil  destroyed  without  the  testator's  consent  may  be  proved 
by  parol  and  probated.     Clark  v.  Wright,  3  Pick.  67. 


80        PROCEEDINGS  IN  THE  TKOBATE  COURTS. 

was  most  likely  to  be  found,  and  then  evidence  may  be 
admitted  to  prove  its  contents.^  If  the  contents  are 
proved,  it  can  be  admitted  to  probate.  But,  in  order  to 
establish  a  will  under  such  circumstances,  the  evidence  of 
the  contents  must  be  strong,  positive,  and  free  from  all 
doubt.2 

'  IMcConnell  v.  Wildes,  153  Mass.  487  ;  Jackson  v.  Betts,  9  Cowen, 
208  ;  Dan  v.  Brown,  4  Cowen,  483;  Fetherly  w.  Waggoner,  11  Wend. 
599  ;  Foster's  Appeal,  87  Penn.  67 ;  Dudley  v.  Wardner,  41  Vt.  59. 

2  Davis  V.  Sigourney,  8  Met.  487;  Durfee  v.  Durfee,  ibid.  490  note; 
Newell  V.  Homer,  120  Mass.  277;  Johnson's  Will,  40  Conn.  587.  In 
Sugden  v.  St.  Leonards,  Law  Rep.  1  P.  D.  154,  the  declarations  of  the 
testator,  made  both  before  and  after  the  execution  of  his  will,  were 
held  admissible  to  show  its  contents.  (Quick  ;;.  Quick,  3  Swa.  &  Trist. 
442,  overruled.) 

"  When  a  will  has  been  lost  or  destroyed,  its  contents  may  be 
proved  by  secondary  evidence.  There  may  be  a  copy  of  the  will,  or  a 
draft  of  it,  or  it  may  be  proved  by  oral  testimony.  Clark  v.  AVright, 
3  Pick.  67.  Where  a  will  is  proved  by  oral  testimony,  it  cannot  be 
expected  that  any  witness  can  testify  to  the  exact  woids  used  :  but 
what  is  required  is  the  substance  of  its  material  provisions."  Tarbell 
V.  Forbes,  177  Mass.  238,  243,  and  cases  cited. 

It  has  been  held  in  some  cases  that  a  lost  will  cannot  be  admitted 
to  probate  except  upon  proof  of  the  whole  contents.     Davis  v.  Sigour- 
ney, 8  Met.  486;  Durfee  I).  Durfee,  ibid.   490;  Wallis  (;.  Wallis,  114 
Mass.  512.     In  other  cases  it  has  been  held  that  when  the  contents  are 
not  completely  proved,  probate  will  be  granted  to  the  extent  to  which 
they  are  proved.     In  Sugden  v.  St.  Leonards,  supra,  decided  in  1876, 
Cockburn,  C.  J.,  said  :    "  As   regards   the   only   remaining  question, 
namely,  whether,  assuming  that  we  have  not  before  us  all  the  contents 
of  the  lost  will,  probate  should  be  allowed  of  that  which  we  have,  so 
long  as  we  are  satisfied  that  we  have  the  substantial  parts  of  the  will 
made  out,  I  cannot  bring  myself  to  entertain  a  doubt.     If  part  of  a 
will  were  accidently  burnt,  or  if  a  portion  of  it  were  torn  out  design- 
edly by  a  wrong-doer,  it  would  nevertheless,   in  my  opinion,  be  the 
duty  of  a  court  of  probate  to  give   effect  to  the  will  of   the  testator  as 
far  as  it  could  be  ascertained.     It  is  not  because  some,  who  would 
otherwise  have  benefited  by  the  will,  may  thus  fail  to  profit  by  the  in- 
tended dispositions  of  the  testator,  that  his  will  should  be  frustrated 
and  fail  of  effect  when  his  intentions  remain  clearly  manifest.     It 


ALLOWANCE  OF  WILLS  PROVED  OUT  OF  THE  STATE.   81 

The  party  applying  for  the  probate  of  a  lost  will  should 
set  forth  in  his  petition  all  the  material  facts  of  the  case, 
and  should  file  with  his  petition  a  paper  containing  the 
contents  of  the  will. 


Section  XI. 

ALLOWANCE   OF   WILLS    PROVED    OUT   OF   THE   STATE. 

Any  person  interested  in  a  will  proved  and  allowed  in 
any  other  of  the  United  States  or  in  a  foreign  country, 

may  be  that  in  this  will  there  were  matters  which  Miss  Sugden  (the 
only  witness  to  the  contents)  fails  to  remember,  and  I  cannot  but  think 
that  there  must  have  been  ultimate  remainders  which  Miss  Sugden  no 
longer  remembers, —  indeed,  she  has  herself  said  that  there  were  other 
remainders  that  she  does  not  recollect.  So  far,  therefore,  we  have  the 
contents  of  the  will  before  us  in  a  defective  form.  It  may  also  be 
that  there  are  some  few  legacies  —  there  cannot  be  many  —  which 
she  does  not  recollect.  They  must  be  few,  and  they  cannot  have  been 
of  any  material  consequence.  But  we  have  the  substantial  testamen- 
tary dispositions  brought  to  our  minds,  and  it  would  not  be  right  to 
enable  any  wrong-doer  or  any  accident —  not  putting  it  so  high  as  an 
intentional  wrong  —  which  might  happen  to  a  will,  and  which  would 
prevent  the  court  which  had  to  deal  with  it  from  being  perfect  master 
of  its  contents,  to  prevent  the  will  from  being  carried  into  effect  so  far 
as  the  dispositions  of  the  testator  had  become  known.  T  think  there 
could  not  be  a  more  mischievous  consequence ;  and  although  it  may 
be  unfortunate  that  the  will  cannot  be  carried  into  execution  to  the 
full  extent  of  the  testamentary  dispositions  of  the  testator,  I  think 
that  of  two  evils  or  two  inconveniences  it  is  far  better,  when  the  court 
can  see  its  way  to  the  essentially  substantial  dispositions  made  in  a 
will,  that  it  should  give  effect  to  them,  although  possibly  some  of  the 
intentions  of  the  testator  may  not  be  carried  into  effect." 

Any  substantial  provision  of  a  lost  will,  which  is  complete  in  itself 
and  independent  of  the  others,  may,  when  proved,  be  admitted  to  pro- 
bate, though  other  provisions  cannot  be  proved,  if  the  validity  and 
operation  of  the  part  which  is  proved  is  not  affected  by  those  parts 
which  cannot  be  proved.  1  Underbill  on  Wills,  §  278,  cited  with  ap- 
proval in  Tarbell  v.  Forbes,  177  Mass.  238,  244. 

6 


82        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

according  to  the  laws  of  such  state  or  country,  or  in  a 
will  which,  according  to  the  laws  of  the  state  or  country 
where  it  was  made,  is  valid  without  probate,  may  produce 
to  the  probate  court  in  any  county  in  which  there  is  any 
estate,  real  or  personal,  on  which  said  will  may  operate,  a 
copy  of  such  will  and  of  the  probate  thereof,  duly  authenti- 
cated, or,  if  such  will  is  valid  without  probate,  a  copy  of 
the  will  or  of  the  official  record  thereof  duly  authenticated 
by  the  proper  officer  having  custody  of  such  will  or  record 
in  such  state  or  country.  With  the  authenticated  copy  of 
the  will  should  be  presented  a  petition  in  writing,  signed 
by  the  person  presenting  the  will,  setting  forth  the  place  of 
the  testator's  last  residence,  the  facts  that  his  will  has 
been  duly  proved  and  allowed  in  such  other  state  or  coun- 
try by  the  court  having  jurisdiction  of  the  case,  or  that  it 
is  there  valid  without  probate,  that  there  is  estate,  real  or 
personal,  in  the  county  in  which  the  petition  is  presented 
upon  which  the  will  may  operate,  and  praying  that  the  will 
may  be  filed  and  recorded. 

Upon  such  petition,  the  statute  requires  the  court  to 
assign  a  time  and  place  for  a  hearing  and  to  cause  notice 
to  be  given  to  all  persons  interested  by  publication  in  a 
newspaper  three  weeks  successively,  the  first  publication 
to  be  thirty  days  at  least  before  the  time  assigned  for  the 
hearing. 

If  at  the  hearing  it  appears  from  the  copies,  and  such 
additional  proof  as  to  the  authenticity  and  execution  of 
the  will  as  may  be  presented,  that  the  instrument  ought 
to  be  allowed  in  this  commonwealth  as  the  last  will  of 
the  deceased,  the  court  orders  the  copy  to  be  filed  and 
recorded,  and  the  will  has  then  the  same  effect  as  if  it  had 
been  originally  proved  in  the  usual  manner.  After  the 
will  is  so  allowed  and  ordered  to  be  recorded,  the  court 


PROOF   OF   NUNCUPATIVE    WILLS.  83 

grants  letters  testamentary,  or  letters  of  administration 
with  the  will  annexed,  as  the  circumstances  of  the  case 
may  require,  and  proceeds  to  the  settlement  of  the  estate 
that  may  be  found  in  this  state  in  the  manner  provided 
in  chapter  one  hundred  and  forty-three  of  the  Revised 
Laws.^ 

In  cases  of  this  kind  no  evidence  of  the  execution  of  the 
will  or  of  the  sanity  of  the  testator  is  required  to  be  pro- 
duced. The  copy  of  the  will,  and  of  the  decree  of  the 
court  in  which  the  will  was  originally  proved,  if  properly 
authenticated,  is  conclusive,  in  the  absence  of  any  alle- 
gations of  fraud,  as  to  all  the  facts  necessary  to  the  estab- 
lishment of  the  will,  and  as  to  the  regularity  of  the 
proceedings  and  their  conformity  to  the  law  of  the  state 
or  country  in  which  the  will  was  originally  proved.^  The 
usual  questions  to  be  determined  are,  whether  the  record 
presented  is  duly  authenticated,  whether  the  court  in 
which  the  will  purports  to  have  been  proved  had  jurisdic- 
tion, and  whether  there  is  any  real  or  personal  estate  in 
the  county  on  which  the  will  may  operate. 


Section  XII. 

PROOF   OF  NUNCUPATIVE   WILLS. 

A  nuncupative  will  is  a  verbal  disposition  of  the  testa- 
tor's personal  estate,  to  take  effect  after  his  death.  The 
statute  provides  that  "  a  soldier  in  actual  military  service 
or  a  mariner  at  sea  may  dispose  of  his  personal  estate  by 
a  nuncupative  will."     The  same  provision  was  contained 

1  R.  L.  c.  136,  §§  10,  11,  12. 

2  Crippen  v.  Dexter,  13  Gray,  330;  Talbot  v.  Chamberlain,  149 
Mass.  57. 


84        PKOCEEDINGS  IN  THE  TROBATE  COURTS. 

in  the  Revised  Statutes  (1836),  and  is  the  only  provision 
relating  to  nuncupative  wills  in  the  statutes  of  this  state. 
Previous  to  the  enactment  of  the  Revised  Statutes  any 
person,  being  in  his  last  sickness,  might  dispose  of  his 
personal  estate  by  a  nuncupative  will,  and  the  manner  of 
making  and  establishing  such  a  will  was  prescribed  at 
length  by  statute  (1783,  c.  24).  That  statute,  however, 
did  not  apply  the  term  "  nuncupative  "  to  the  testamentary 
dispositions  of  soldiers  and  mariners,  but  provided  that 
they  might  dispose  of  their  personal  estate  as  they  might 
have  done  before  the  passage  of  that  act.  The  same 
exception  was  made  in  the  provincial  act,  4  W,  &  M. 
c.  3,  and  the  statute  of  frauds  (29  Car.  II.  c.  3),  which, 
particularly  prescribing  the  manner  of  making  and  proving 
nuncupative  wills,  provided  that  soldiers  and  sailors  might 
dispose  of  their  personal  property  as  they  had  previously 
done.  The  distinction  between  nuncupative  wills  and  the 
unwritten  wills  of  soldiers  and  sailors  was  recognized  at 
a  very  remote  period.  The  unwritten  wills  of  soldiers 
were  denominated  military  wills,  and  other  verbal  testa- 
ments nuncupative  wills.  ^  The  Revised  Statutes  of  this 
state  applied  the  term  "  nuncupative "  to  the  wills  of 
soldiers  and  mariners,  but  expressly  reserved  their  pre- 
viously existing  rights  as  to  their  testamentary  dispositions. 
It  has  been  held  accordingly  in  this  commonwealth,  and 
in  other  states  where  a  similar  provision  of  statute  exists, 
that  the  rule  governing  the  only  unwritten  wills  now 
recognized,  is  the  common  law  as  it  stood  before  the 
passage  of  the   statute  of  frauds.^     The  walls  of  seamen 

1  Swinburne,  Pt.  1.  §§  12,  14. 

2  In  the  Goods  of  Arthur  White,  22  Law  Rep.  (Boston)  110; 
Hubbard  v.  Hubbard,  4  Selden,  196 ;  Leathers  v.  Greenacre,  53 
Maine,  561. 


PROOF   OF   NUNCUPATIVE    WILLS.  85 

have  been  held  to  come  within  tlie  reason  and  the  rule  of 
military  testaments.^ 

Although  no  form  of  words  is  needed  to  constitute  a  good 
nuncupative  will,  it  is  very  necessary  that  the  testator's 
declarations  should  plainly  express  his  intentions.  Swin- 
burne says :  "  As  for  any  precise  form  of  words,  none  is 
required,  neither  is  it  material  whether  the  testator  do 
speak  properly,  or  unproperly,  so  that  his  meaning  do 
appear."  "And  although  in  written  testaments  it  be 
also  required  that  the  words  and  sentences  be  such  as 
thereby  the  testator's  meaning  may  appear ;  yet  more  spe- 
cially is  it  required  in  a  nuncupative  testament,  for  more 
sujiply  may  be  made  in  written  testaments  than  can  be 
made  in  nuncupative  testaments,  concerning  the  testator's 
meaning."  2  Nuncupative  wills  may  be  made  not  only  by 
the  proper  motions  of  the  testator,  but  also  in  answer  to 
the  interrogation  of  other  persons.^ 

1  It  has  been  held  tliat  the  purser  of  a  man-of-war  is  within  this 
description,  and  that  it  includes  the  whole  service,  applying  equally  to 
superior  officers  up  to  the  commander-in-chief  as  to  a  common  seaman, 
being  at  sea.  In  re  Hays,  2  Curt  338.  And  it  has  been  held  to  apply 
to  merchant  seamen.  Eiiston  v.  Seymour,  cited  2  Curt.  339.  A  cook 
on  board  a  merchant  ship  is  a  mariner.  Ex  parte  Thompson,  4  Bradf. 
(N.  Y.)  160. 

2  Part  4,  §  29.     . 

8  Swinburne,  Pt.  1,  §  12.  While  in  his  last  sickness,  and  about 
an  hour  before  he  died,  being  of  sound  mind,  on  being  asked  as  to  the 
disposition  of  his  property,  the  testator  said,  in  the  presence  of  several 
witnesses,  that  he  "wished  his  wife  to  have  all  his  personal  property." 
Beckwith,  the  mate  of  the  vessel,  then  asked  him  if  he  wished  her  to 
have  all  his  real  property,  and  he  replied,  "  Yes,  all."  He  was  then 
asked  if  he  had  no  will,  and  he  replied  that  he  had  had  one,  but  it 
was  destroyed.  He  was  then  asked  by  B.  what  he  should  tell  iiis  wife, 
and  he  replied,  "  Tell  her  I  loved  her  till  the  end."  He  was  subse- 
quently asked  by  B.  whom  he  wanted  to  settle  his  affairs,  and  he 
answered,  "  I  want  you  to  do  it."  He  did  not  ask  any  one  to  bear 
witness  that  what  he  stated  was  his  will.     These  conversations  were 


86        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

To  prove  a  nuncupative  will,  it  must  appear  that  the 
testator  vras  either  a  soldier  in  actual  military  service,  or 
a  mariner  at  sea,  at  the  time  when  he  made  his  testa- 
mentary declarations.  The  English  courts  have  held 
that  the  privilege  does  not  extend  to  soldiers  quartered  in 
barracks,  either  at  home  or  abroad,  but  that  the  soldier 
must  be  engaged  on  an  expedition  at  the  time.^  In  behalf 
of  seamen,  however,  the  rule  has  been  carried  to  the 
extreme  limit  of  construction.  ^  The  substance  of  the 
testator's  requests  or  instructions  must  be  established,  and 
it  must  be  proved  to  the  satisfaction  of  the  court  that  the 
testator  intended  by  his  declarations  to  make  a  testamen- 
tary disposition  of  his  property.  It  must  appear,  of 
course,  that  the  testator  was  of  sound  mind. 

No  particular  number  of  witnesses  is  required  to  estab- 
lish a  nuncupative  will,  but  every  fact  necessary  to  support 
it  should  be  proved  by  the  most  positive  evidence.^    The 

proved  by  four  witnesses.  It  was  held  that  they  constituted  a  good 
nuncupative  will,  and  that  the  evidence  was  suflBcient  to  show  that  the 
testator  intended  to  make  B.  his  executor.  Hubbard  v.  Hubbard, 
4  Selden,  196. 

1  Drummond  v.  Parish,  3  Curteis,  522;  White  v.  Ripton,  ibid,  818. 
And  see  Leathers  v.  Greenacre,  53  Maine,  561. 

^  A  sailor,  while  the  ship  was  in  a  foreign  harbor,  obtained  leave 
to  go  on  shore,  where  he  was  so  injured  by  an  accident  that  he  did  not 
return  to  the  ship,  but  died  of  his  injuries  in  a  few  days  after  the 
accident.  His  nuncupative  will  was  held  to  be  the  will  of  a  seaman 
"at  sea,"  though  he  was  not  on  board  the  vessel  at  the  time.  In  the 
Goods  of  Lay,  2  Curteis,  375. 

A  nuncupative  will  may  be  made  by  a  mariner  on  a  coasting  vessel 
while  she  is  on  a  voyage,  and  while  lying  at  anchor  in  an  arm  of  the 
sea  where  the  tide  ebbs  and  flows,  a  mile  distant  from  the  open  sea 
and  three  miles  from  a  settlement  on  shore.  Hubbard  v.  Hubbard, 
4  Selden,  196. 

8  It  may  be  established  by  the  testimony  of  one  witness.  Ex  parte 
Thompson,  4  Bradf .  160 ;  Gould  v.  Safford,  39  Vt.  498. 

In  the  probate  court  of  Suffolk  county,  a  nuncupative  will  was  ad- 


WHAT   WILL    PASS    UNDER    A   WILL.  87 

great  danger  of  mistake,  particularly  in  cases  where  the 
testator's  declarations  were  not  reduced  to  writing  soon 
after  they  were  made,  and  the  obvious  facilities  for  the 
fraudulent  setting  up  of  such  wills,  render  it  necessary  that 
the  evidence  should  be  subjected  to  the  closest  scrutiny. 
Unless  it  is  made  morally  certain  that  the  declarations 
proved  contain  the  true  subject  and  import,  at  least,  of 
the  alleged  nuncupation,  and  embody  the  testator's  real 
testamentary  intentions,  the  will  cannot  safely  be  allowed. 

The  person  applying  for  the  probate  of  a  nuncupative 
will  should  set  forth  in  his  petition  the  material  facts  of  the 
case,  and  the  substance  of  the  testamentary  declarations  of 
the  testator.  The  usual  notice  must  be  given  before  any 
hearing  upon  the  question  of  proving  the  will  can  be  had. 
At  the  hearing,  the  will  is  reduced  to  writing  in  the  form 
in  which  it  may  be  established  by  the  evidence,  and  is  then 
admitted  to  probate.^ 

A  nuncupative  will  executed  in  another  state  or  country, 
according  to  the  law  of  that  state  or  country,  which  would 
not  have  been  valid  if  made  here,  may  be  proved  in  this 
state,  and  have  the  same  effect  as  if  it  had  been  executed 
according  to  the  laws  of  this  commonwealth.^ 

WHAT   WILL   PASS    UNDER   A   WILL. 
[Revised  Laws,  c.  135.] 

"  Sect.  22.  A  devise  shall  convey  all  the  estate  which 
the  testator  could  lawfully  devise  in  the  lands  mentioned, 

mitted  to  probate  on  the  testimony  of  one  witness,  •who  was  also  a 
legatee  under  the  will ;  the  court  held  that  he  was  not  an  "  attesting 
witness,"  and  therefore  not  disqualified  by  reason  of  interest.  In  the 
Goods  of  Arthur  White,  22  Law  Reporter  (Boston),  110. 

1  The  use  is  to  prove  it  by  witnesses,  and  then  to  write  it.  Swin- 
burne, Pt.  1,  §  12.  "  Being  after  his  death  proved  by  witnesses,  and 
put  in  writing  by  the  ordinary."     Bac.  Abr.  Wills,  D. 

a  Slocomb  V.  Slocomb,  13  Allen,  38. 


88        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

unless  it  clearly  appears  by  the  will  that  he  intended  to 
convey  a  less  estate."  ^ 

"  Sect.  23.  An  estate,  right,  or  interest  in  lands  acquired 
by  a  testator  after  the  making  of  his  will,  shall  pass  thereby 
in  like  manner  as  if  possessed  by  him  at  the  time  when 
he  made  his  will,  unless  a  different  intention  manifestly 
and  clearly  appears  by  the  will."  ^ 

"  Sect.  24.  If  a  person  devises  lands  of  which  he  is  not 
seised,  but  in  which  he  has  a  right  of  entry,  or  if,  after 
making  a  will,  he  is  disseised  of  land  devised  thereby,  such 
land  shall  nevertheless  pass  to  the  devisee  in  like  manner 
as  they  would  have  descended  to  the  testator's  heirs  if  he 
had  died  intestate,  and  the  devisee  shall  have  the  like 
remedy  for  the  recovery  of  such  land  as  such  heirs  might 
have  had."  ^ 

AGREEMENTS   TO    MAKE   WILLS   OR   GIVE   LEGACIES. 

Prior  to  May  17,  1888,  it  was  well  settled  that  a  contract 
founded  on  a  sufficient  consideration  to  make  a  certain 
provision  by  will  for  a  particular  person  was  valid,  and 
would  be  enforced.*  But  an  oral  promise  to  make  a  will 
of  all  the  testator's  property,  real  and  personal,  was  held 
to  be  a  contract  for  the  sale  of  lands  within  the  statute  of 
frauds,  and  therefore  invalid.^ 

Soon  after  the  decision  of  the  court  in  Wellington  v. 

1  Willcutt  V.  Caliian,  98  Mass.  75;  Spooner  v.  Lovejoy,  108  Mass. 
529 ;  Todd  v.  Sawyer,  147  Mass.  570 ;  Simonds  v.  Simonds,  168  Mass. 
144. 

^  Winchester  v.  Forster,  3  Cush.  306  ;  Hill  v.  Bacon,  106  Mass.  578; 
Kimball  v.  Tilton,  118  Mass.  311. 

3  Ward  c.  Fuller,  15  Pick.  185;  Brown  v.  Wells,  12  Met.  501. 

*  Jenkins  i'.  Stetson,  9  Allen,  128 j  Wellington  r.  Apthorp,  145 
Mass.  69. 

5  Gould  V.  Mansfield,  103  Mass.  408. 


COMrROMISES    OF   WILLS.  89 

Apthorp,  the  statute  of  1888  (chapter  372)  was  passed, 
which  provided  that  no  agreement  to  make  a  will  of  either 
real  or  personal  estate,  and  no  agreement  to  give  a  legacy, 
or  make  a  devise  by  will,  shall  be  binding  unless  such 
agreement  is  in  writing  signed  by  the  party  whose  executor 
or  administrator  is  sought  to  be  charged,  or  by  some  person 
by  such  party  duly  authorized.^  The  act  provided  that 
nothing  therein  contained  should  in  any  way  affect  any 
agreement  made  prior  to  its  passage,  which  was  May  17, 
1888.  This  act  is  now  embodied  in  c.  74,  §  6,  of  the 
Revised  Laws. 

COMPROMISES   OP   WILLS. 

Under  c.  148,  §  15,  of  the  Revised  Laws,  which  embodies 
P.  S.  c.  143,  §  14,  the  supreme  judicial  court  has  jurisdic- 
tion in  equity  to  authorize  the  persons  named  as  executors 
in  an  instrument  purporting  to  be  the  last  will  of  a  person 
deceased,  or  the  administrators  with  such  will  annexed, 
to  adjust  by  arbitration  or  compromise  any  controversy 
between  the  persons  who  claim  as  devisees  or  legatees  under 
such  will  and  the  persons  entitled  to  the  estate  of  the  de- 
ceased under  the  statutes  regulating  the  descent  and  distri- 
bution of  intestate  estates. 

Under  the  broad  equity  powers  granted  by  St.  1891, 
c.  415,  §  1,  some  of  the  probate  judges  assumed  that  the 
probate  court  had  concurrent  jurisdiction  with  the  supreme 

^  Emery  v.  Burbank,  163  Mass.  326.  A  letter  written  by  direction 
of  a  woman  eighty-five  years  old  to  her  sister  Ellen  contained  the 
words:  "Will  you  and  Minnie  come  and  stay  with  me  as  long  as  I 
live?  I  will  pay  all  your  expenses,  and  what  property  I  have  left  will 
be  yours,  Ellen.  My  expenses  are  very  large,  but  all  that  I  have  shall 
be  yours."  It  was  held  in  Howe  v.  Watson,  179  Mass.  30  that  this 
letter  satisfied  the  requirements  of  St.  1888,  c.  372. 


90        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

judicial  court  for  the  purpose  stated  in  the  preceding  para- 
graph, and  in  certain  cases  assumed  to  authorize  such 
compromises  of  controversies  arising  under  a  will. 

In  Abbott  V.  Gaskins,  181  Mass.  (63  N.  E.  Rep.  953),  it 
was  held  that  the  probate  court  did  not  have  jurisdiction 
for  this  purpose.  To  confirm  the  proceedings  and  decrees 
of  the  probate  courts  in  authorizing  and  confirming  com- 
promises of  controversies  under  wills,  St.  1902,  c.  538,  was 
passed. 


CHAPTER  III. 

DEPOSIT,   CUSTODY,   AND  PROCEEDINGS  IN  CASE  OF 
CONCEALMENT  OF   WILLS. 

A  WILL,  when  executed,  if  the  testator  sees  fit,  may  be 
deposited  in  the  registry  of  probate  in  the  county  where 
he  lives,  for  safe  keeping;  and  the  register,  upon  being 
paid  the  fee  of  one  dollar,  is  required  to  receive  and  keep 
it,  and  give  a  certificate  of  the  deposit  thereof.  The 
will  so  deposited  must  be  enclosed  in  a  sealed  wrapper, 
indorsed  with  the  name  of  the  testator,  his  place  of  resi- 
dence, the  day  when,  and  the  person  by  whom  it  is  depos- 
ited, and  may  have  indorsed  thereon  the  name  of  the 
person  to  whom  it  is  to  be  delivered  after  the  testator's 
death.^ 

Such  will,  during  the  lifetime  of  the  testator,  can  be 
delivered  only  to  himself,  or  to  some  person  authorized  by 
him,  by  an  order  in  writing  duly  proved  by  the  oath  of  a 
subscribing  witness  ;2  after  his  death  it  will  be  delivered 
to  the  person  named  in  the  indorsement  on  the  wrapper, 
if  there  is  a  person  so  named  who  demands  it.  In  the 
mean  time  it  cannot  be  opened  or  read.  If  not  so 
demanded,  it  will  be  publicly  opened  at  the  first  probate 
court  held  after  notice  of  the  testator's  death.  It  will 
then  be  retained  in  the  registry  until  it  is  offered  for 
probate ;  or,  if  the  jurisdiction  of  the  case  belongs  to 
another  court,  it  will   be   delivered   to   the  executors  or 

1  R.  L.  c.  135,  §§  10,  11.  2  St.  1902,  c.  160. 


92        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

otlier  persons  entitled  to  its  custody  to  be  presented  for 
probate  in  such  other  court/ 

The  statute  requires  every  person,  other  than  the  regis- 
ter of  the  probate  court  having  the  custody  of  a  will, 
within  thirty  days  after  notice  of  the  death  of  the  testator, 
to  deliver  it  into  the  probate  court  which  has  jurisdiction 
of  the  case,  or  to  the  executors  named  in  the  will ;  and  if 
without  reasonable  cause  an  executor  or  other  person  neg- 
lects to  so  deliver  a  will,  after  being  duly  cited  for  that 
purpose,  he  may  be  committed  to  the  jail  by  warrant  of 
the  court,  there  to  be  kept  in  close  custody  until  he  so 
delivers  the  will ;  and  he  will  be  further  liable  to  any 
party  aggrieved  for  the  damage  sustained  by  such  neglect.^ 
In  order  that  such  a  citation  may  issue,  a  petition  setting 
forth  the  facts  should  be  presented  to  the  court.  Any 
person  interested  may  petition. 

Upon  complaint  under  oath  made  to  the  probate  court 
by  a  person  claiming  to  be  interested  in  the  estate  of 
a  person  deceased,  against  any  one  suspected  of  retaining, 
concealing,  or  conspiring  with  others  to  retain  or  conceal, 
any  will  or  testamentary  instrument  of  the  deceased,  the 
court  may  cite  the  suspected  person  to  appear  before  it 
and  be  examined  on  oath  upon  the  matter  of  the  com- 
plaint. Upon  such  examination  all  interrogatories  and 
answers  must  be  in  writing,  signed  by  the  party  ex- 
amined, and  filed  in  the  court.^  The  citation  may  be 
served  by  an  officer  qualified  to  serve  civil  process,  or 
by  a  private  person.  If  by  a  private  person,  the  fact 
that  service  was  made  as  ordered  must  be  proved  by  his 

1  R.  L.  c.  135,  §§  12,  13 ;  St.  1902,  c.  160. 

2  R.  L.  c.  135,  §  14;  Stebbins  v.  Lethrop,  4  Pick.  33;  Hill  v. 
Davis,  4  Rlass.  137. 

»  R.  L.  c.  135,  §  15. 


CONCEALMENT    OF   WILLS.  93 

affidavit.  The  affidavit  may  be  conveniently  indorsed  ou 
the  citation. 

If  the  person  cited  refuses  to  appear  and  submit  to 
examination,  or  to  answer  such  interrogatories  as  are 
lawfully  propounded  to  him,  or  to  obey  any  lawful  order, 
the  judge  may  commit  him  to  the  jail,  there  to  remain 
in  close  custody  until  he  submits  to  the  order  of  the 
court.i 

On  such  complaint  the  judge  in  his  discretion  may 
award  costs  to  be  paid  by  either  party,  and  may  issue 
execution  therefor.^ 

The  will,  after  being  admitted  to  probate,  remains  on 
the  files  of  the  probate  office,  except  that,  after  the  ex- 
piration of  thirty  days  from  the  probate  decree,  upon  the 
petition  of  the  executor,  or  of  any  person  interested  in 
the  estate  of  the  testator,  after  such  notice  thereof  as  the 
court  shall  require  and  hearing  had  thereon,  the  court 
may  permit  the  original  will,  if  it  appears  to  be  necessary 
for  the  purpose,  to  be  taken  from  the  files  and  to  be  used 
in  a  foreign  country,  for  the  purpose  of  establishing  the 
right  or  title  of  such  executor  or  person  to  the  estate 
of  the  testator  in  such  country. ^ 

1  Whoever  stea]s,  or  for  any  fraudulent  purpose  destroys,  mutilates, 
or  conceals  a  will,  codicil,  or  other  testamentary  instrument,  shall  be 
punished  by  imprisonment  iu  the  state  prison  not  exceeding  five  years, 
or  in  the  house  of  correction  not  exceeding  two  years.  R.  L.  c.  208, 
§29. 

2  R.  L.  c.  135,  §  15.  8  R.  L.  c.  162,  §  50. 


CHAPTER   lY. 

APPOINTMENT   OF  EXECUTORS. 

An  executor  is  the  person  to  whom  the  testator  has 
confided  the  trust  of  administering  his  estate  according 
to  his  last  will  and  testament.^  He  can  derive  his  office 
only  from  a  testamentiary  appointment  confirmed  by  a 
decree  of  the  probate  court.  The  appointment  is  gener- 
ally made  by  express  words  contained  in  the  will ;  but  it 
may  be  made  constructively  by  other  than  express  words. 
The  form  of  petition  for  the  probate  of  a  will  in  common 
use,  made  by  the  executor  named  in  the  will,  prays  that 
administration  be  granted  to  him  ;  ^  and  when  the  will  has 
been  proved  and  allowed,  letters  testamentary  are  issued 
to  him,  provided  that  he  is  legally  competent  for  the  office, 
and  gives  bond  for  the  discharge  of  the  trust  as  required 
by  law. 

Every  non-resident  executor,  appointed  by  a  probate 
court  or  the  supreme  judicial  court,  shall  appoint  in  writ- 
ing an  agent  residing  in  the  commonwealth,  upon  whom 
service  of  legal  process  can  be  made.     If  such  agent  dies 

^  When  a  legacy  lapses,  or  a  bequest  cannot  be  maintained,  and 
such  legacy  or  bequest  is  to  be  treated  as  intestate  property,  and  to  be 
distributed  to  the  heirs  at  law,  it  is  not  necessary  for  the  executor 
also  to  take  out  letters  of  administration  on  such  intestate  property; 
but  he  may  distribute  it  as  executor.  McGreevy  v.  McGrath,  152 
Mass.  24. 

^  Facts  alleged  in  the  petition  must  be  sworn  to.     K.  L.  c.  136,  §  1. 


APPOINTMENT   OF   EXECUTORS.  95 

or  removes  from  the  commonwealth,  another  agent  must 
be  appointed.^  Such  non-resident  executor  shall  not  be 
entitled  to  receive  his  letters  of  appointment  until  he 
has  complied  with  the  above  requirement.^  Service  of 
any  legal  process  upon  such  agent  shall  be  of  the  same 
legal  effect  as  if  made  upon  his  principal  when  in  the 
commonwealth.^ 


WHO   MAY  BE   EXECUTORS. 

Any  person  may  be  nominated  as  executor,  but  all  per- 
sons are  not  legally  competent  to  act  in  that  office.  A 
minor  or  an  infant  ventre  sa  mere  may  be  nominated  in 
the  will ;  but  if  at  the  time  of  proving  the  will  the  exec- 
utor named  therein  is  not  of  full  age,  administration  with 
the  will  annexed  is  granted  to  some  other  person  during 
his  minority,  unless  there  is  another  executor  nominated 
in  the  will  who  accepts  the  trust,  in  which  case  such  other 
executor  administers  until  the  minor  arrives  at  full  age ; 
he  can  then,  by  giving  bond,  be  admitted  as  joint  executor.* 
If  the  executor  named  in  the  will  is  physically  or  mentally 
incapacitated,  administration  is  granted  to  some  other  per- 
son. Any  objection  that  would  cause  the  removal  of  an 
executor  is  sufficient  to  prevent  the  confirmation  of  his 
appointment  by  the  court.^ 

A  married  woman  may  be  an  executrix,  administratrix, 
guardian,  or  trustee,  and  bind  herself  and  the  estate  she 
represents,  without  any  act  or  assent  on  the  part  of  her 
husband.^ 

1  R.  L.  c.  139,  §  8.  2  Ibid. 

8  Ibid.  .  *  R.  L.  c.  136,  §  6. 

5  As  to  removals,  see  post,  chap.  viii. 

«  R.  L.  c.  153,  §  5. 


96        PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Tlie  executor  of  an  executor  shall  not,  as  such,  admin- 
ister on  the  estate  of  the  first  testator.^ 

A  domestic  trust  company  may  be  appointed  executor  of 
a  will,  codicil,  or  writing  testamentary,  or  administrator 
with  the  will  annexed.^ 

EXECUTORS   TO    GIVE   BOND. 

General  Bond.  —  The  executor,  before  letters  testamen- 
tary are  issued  to  him,  is  required  to  give  bond  with  suffi- 
cient surety  or  sureties,  in  such  sum  as  the  judge  of  the 
probate  court  shall  order,  payable  to  the  judge  and  his 
successor,^  with  condition  to  make  and  return  to  the  pro- 
bate court,  within  three  months,  a  true  inventory  of  all 
the  testator's  real  and  personal  estate  which  at  the  time 
of  making  the  inventory  shall  have  come  to  the  possession 
or  knowledge  of  the  executor;*  to  administer  according 
to  law  and  the  will  of  the  testator  all  his  personal  estate 
which  may  come  to  the  possession  of  the  executor,  or  of 
any  person  for  him,  and  also  the  proceeds  of   any  real 

1  R.  L.  c.  136,  §  9.     Tallon  v.  Tallon,  156  Mass.  315. 

2  R.  L.  c.  110,  §  18. 

*  In  Suffolk  and  Middlesex,  it  is  payable  to  the  first  judge  of  pro- 
bate.    R.  L.  c.  161,  §  2. 

*  An  executor  who  fails  to  file  an  inventory  and  account  is  liable 
in  an  action  brought  by  a  judge  of  probate  in  behalf  of  the  legatee, 
although  the  defendant  offered  to  prove  that  all  the  assets  mentioned 
in  the  inventory  which  was  filed  .subsequently  to  the  date  of  the  writ 
were  received  more  than  three  months  after  the  filing  of  the  bond, 
that  no  creditor  had  presented  claims  which  had  remained  unpaid, 
that  all  the  funeral  expenses  had  been  paid,  that  the  testator  at  his 
decease  was  indebted  to  the  executor  in  a  sum  greater  than  all  the 
assets  at  any  time  in  the  hands  of  the  executor,  and  that  at  no  time 
had  the  executor  funds  with  which  to  pay  any  portion  of  the  legacy. 

In  order  to  maintain  an  action  for  failure  to  file  the  requisite  inven- 
tory and  account,  it  is  not  necessary  to  show  that  any  damage  has  been 
sustained  beyond  such  omission.     Forbes  v.  McHugh,  152  Mass.  412. 


BONDS    OF    EXECUTORS.  97 

estate  that  may  be  sold  or  mortgaged  by  the  executor  ; 
to  render  upon  oath  a  true  account  of  his  administration 
at  least  once  a  year  until  his  trust  is  fulfilled,  unless 
he  is  excused  therefrom  in  any  year  by  the  court,  and  to 
render  such  account  at  such  other  times  as  the  court  may 
order.i  When  two  or  more  persons  are  appointed  exec- 
utors, none  can  intermeddle  or  act  as  such  but  those  who 
give  bond.^ 

Bond  tvhen  the  Executor  is  Residuary  Legatee.  —  If  it 
appears  to  the  judge  that  the  bond  above  described  is  not 
necessary  for  the  protection  of  any  person  interested  in 
the  estate,  he  may  permit  an  executor,  who  is  residuary 
legatee,  instead  of  giving  such  bond,  to  give  a  bond  with 
condition  to  pay  all  debts  and  legacies  of  the  testator,  and 
such  sums  as  may  be  allowed  by  the  probate  court  to  the 
widow  or  minor  children  for  necessaries ;  and  in  such 
case  he  is  not  required  to  return  an  inventory.^ 

An  executor,  therefore,  who  is  residuary  legatee  may 
give  a  bond  in  the  common  form,  which  requires  him  to 
return  an  inventory  of  the  estate  ;  or  he  may  be  excused 
the  labor  and  expense  of  making  an  inventory  by  giving 
bond  to  pay  debts,  legacies,  and  allowances.  It  is  at  his 
ov\ai  option  to  give  one  or  the  other.  The  reason  of  this 
indulgence  is  that,  as  he  is  residuary  legatee,  no  person 
can  have  an  interest  in  procuring  evidence  of  the  assets 
except  the  creditors,  legatees,  and  family  of  the  deceased  ; 
and  if  he  binds  himself  to  pay  all  their  claims,  the  amount 
of  the  assets  is  of  no  concern  to  any  person  except  him- 
self. But  if  he  chooses  to  bind  himself  to  pay  the  debts 
and  legacies,  he  must  abide  by   the  consequences  of  his 

1  R.  L.  c.  149,  §  1. 

^  Ibid.  §  12.     As  to  bonds,  generally,  see  post,  chap.  xix. 

8  R.  L.  c.  U9,  §  2. 


98        TKOCEEDINGS  IN  THE  PROBATE  COURTS. 

election.^  He  must  fulfil  the  condition  of  his  bond, 
whether  tlic  assets  are  sufficient  for  the  purpose  or  not. 
The  condition  of  the  bond  is  not  to  pay  if  there  are  assets, 
but  to  pay  at  all  events.  By  giving  such  a  bond  he  con- 
clusively admits  assets,  and  the  admission  will  bind  him 
and  his  sureties,  even  if  the  estate  proves  insolvent.^  If, 
on  the  other  hand,  he  gives  a  bond  in  the  common  form 
and  returns  an  inventory,  he  will  be  responsible  for  the 
assets,  but  no  further.  When  the  executor  knows  that 
the  estate  is  sufficient  to  meet  all  the  claims  against  it, 
with  the  charges  of  administration  and  the  allowances 
made  to  the  widow  and  children  of  the  testator,  he  may 
safely  give  a  bond  to  pay  the  debts  and  legacies  ;  but 
where  there  is  any  doubt  whatever  of  the  sufficiency  of 
assets,  he  should  give  bond  in  the  common  form  and 
return  an  inventory.^ 

1  When  an  executor  has  given  a  bond  to  pay  debts  and  legacies,  a 
creditor  of  the  estate  may  collect  his  debt,  by  attachment  of  the  estate 
in  the  hands  of  the  executor,  by  suit  against  the  sureties  on  the  bond, 
and  by  scire  facias  against  the  executor.  R.  L.  c.  172,  §  8  ;  Jenkins 
V.  Wood,  140  Mass.  66;  Jenkins  v.  Wood,  144  Mass.  238.  It  is  no 
defence  to  an  administrator  de  bonis  non  with  the  will  annexed  that 
the  original  executor,  who  was  also  the  residuary  legatee,  gave  a  bond 
to  pay  debts  and  legacies.     Collins  v.  Collins,  140  Mass.  502. 

2  Colwell  V.  Alger,  5  Gray,  67  ;  Thayer  v.  Winchester,  133  Mass. 
449  ;  Jenkins  v.  AVood,  140  Mass.  66.  In  a  suit  to  recover  a  legacy, 
the  plaintiff  need  not  give  any  proof ,  except  such  bond,  that  the  ex- 
ecutor has  assets  in  his  hands.  Jones  v.  Richardson,  5  Met.  247  ; 
Chapin  v.  Waters,  110  Mass.  200;  Jenkins  v.  Wood,  144  Mass.  288. 

A  bond  to  pay  debts  and  legacies,  given  by  an  executor  who  is 
residuary  legatee,  who  has  thus  been  excused  from  returning  an  in- 
ventory within  three  months,  cannot,  after  the  expiration  of  a  year 
and  a  half,  be  cancelled  or  surrendered  by  the  probate  court,  or  su- 
preme court,  even  if  no  assets  have  come  to  tlie  executor's  hands. 
Alger  V.  Colwell,  2  Gray,  404. 

*  The  giving  of  the  bond  to  pay  debts  and  legacies  does  not  dis- 
charge the  lien  on  the  real  estate  of  the  testator  for  the  payment  of 


BONDS   OF   EXECUTORS.  99 

An  administrator  with  the  will  annexed  gives  a  bond 
in  like  manner  and  with  like  condition  as  is  required  of 
an  executor.  If  such  administrator  is  residuary  legatee, 
the  court  may  permit  him  to  give  a  bond  to  pay  debts  and 
legacies,  with  like  effect  as  though  he  was  nominated 
executor  in  the  will.^ 

When  no  Sureties  are  required.  — Executors  are  exempted 
from  giving  a  surety  or  sureties  on  their  bonds,  when 
the  testator  has  ordered  or  requested  such  exemption,  or 
that  no  bond  should  be  taken,  or  when  all  the  persons 
interested  in  the  estate  who  are  of  full  age  and  legal 
capacity,  other  than  creditors,  certify  to  the  court  their 
consent  thereto ;  but  not  until  all  creditors  of  the  estate, 
and  the  guardian  of  any  minor  interested  therein,  have 
been  notified,  and  had  opportunity  to  sliow  cause  against 
the  same.2  The  court,  however,  may,  at  or  after  the 
granting  of  letters  testamentary,  require  bond  with  suffi- 
cient surety  or  sureties.^ 

Whenever  an  appointment  of  an  executor,  administrator, 

his  debts,  except  on  such  part  as  may  be  sold  by  the  executor  or  ad- 
ministrator with  the  will  annexed  to  a  purchaser  in  good  faith  and  for 
a  valuable  consideration  ;  all  estate  not  so  sold  may  be  taken  on  execu- 
tion by  any  creditor  not  otherwise  satisfied,  in  like  manner  as  if  a 
bond  had  been  given  in  the  other  form.     B,.  L.  c.  149,  §  2. 

1  R.  L.  c.  149.  §  2. 

2  Notice  by  publication  in  a  newspaper  is  sufficient,  although  a 
minor  who  has  no  guardian  is  interested.  Wells  r.  Child,  12  Allen, 
330.  A  bond  without  surety  approved  by  the  probate  court,  without 
notice  to  creditors,  is  not  such  a  bond  as  the  statute  requires ;  and 
the  statute  of  limitations  against  executors  will  not  be  given  to  run 
from  the  filing  of  such  a  bond.  Abercrombie  v.  Sheldon,  8  Allen, 
532. 

A  general  notice  is  ordinarily  sufficient,  even  if  it  fails  to  reach 
some  of  the  parties  interested.  Bonnemort  ;•.  Gill,  167  Mass.  338; 
Tyler  v.  Court  of  Registration,  175  Mass.  71,  75. 

8  R.  L.  c.  149,  §  3. 


100       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

guardian,  or  trustee  is  invalid  bj  reason  of  any  irregu- 
larity, or  want  of  jurisdiction  or  authority  of  the  court 
making  the  same,  the  person  so  appointed  shall  be  held 
to  account  for  all  money,  property,  or  assets  which  have 
come  to  his  hands  as  executor,  administrator,  guardian, 
or  trustee,  or  by  reason  of  such  appointment,  in  the  same 
manner  as  if  the  appointment  had  been  regular  and  valid  ; 
and  any  bond  given  in  pursuance  of  such  appointment 
shall  be  held  to  be  valid  and  binding,  both  on  the  principals 
and  sureties,  for  that  purpose.^ 

Payments  made  to  or  by  such  person  as  executor, 
administrator,  guardian,  or  trustee,  if  in  other  respects 
properly  made,  may,  with  the  approval  of  the  probate 
court,  be  ratified  and  confirmed  by  the  executor,  adminis- 
trator, guardian,  or  trustee,  who  may  be  afterwards 
legally  appointed.^ 

If  a  person  named  as  executor  in  a  will  has  deceased  or 
refuses  to  accept  the  trust,  or  after  being  duly  cited  for 
that  purpose,  neglects  to  appear  and  accept  the  same,  or 
neglects  for  twenty  days  after  probate  of  the  will  to  give 
bond,  letters  testamentary  are  granted  to  the  other  execu- 
tors if  there  are  any  competent  and  willing  to  accept  the 
trust ;  2  and  if  there  are  none,  or  if  the  executors  are  dead, 
or   none   are    named   in   the   will,  administration   of   the 


1  R.  L.  c.  148,  §  24. 

2  Ibid. 

'  R.  L.  c.  136,  §  5.  A  person  named  in  a  will  as  executor  who  de- 
clines the  trust,  may  recall  his  declination  and  be  appointed  executor 
prior  to  the  appointment  of  an  administrator  with  the  will  annexed. 
Shannon  v.  Shannon,  111  Mass.  331. 

A  person  named  in  a  will  as  one  of  two  executors  and  who  has  de- 
clined the  trust  cannot  recall  his  declination  and  be  appointed  an 
executor  after  the  granting  of  letters  testamentary  to  the  other  execu- 
tor.    Jewett  V.  Turner,  172  Mass.  496. 


APPOINTMENT   OF   EXECUTORS.  101 

estate  with  the  will  annexed  is  granted  to  such  persons  as 
would  have  been  entitled  thereto  if  the  deceased  had  died 
intestate ;  but  after  the  expiration  of  the  twenty  days, 
and  before  letters  testamentary  or  of  administration  are 
granted,  the  court  may  grant  letters  testamentary  to  any 
person  appointed  executor  who  gives  the  bond  prescribed 
by  law. 


CHAPTER  Y. 

APPOINTMENT  OF  ADMINISTRATORS. 

When  a  person  dies,  not  having  disposed  of  his  property 
by  will,  he  is  said  to  die  intestate,  and  the  law  prescribes 
the  manner  in  which  his  estate  may  be  settled,  and  the 
rights  of  all  persons  interested  secured.  ^ 

IN   WHAT   CASES   ADMINISTRATION   IS   GRANTED, 

Administration  may  be  granted  by  the  probate  court  for 
each  county  of  the  estates  of  persons  who  at  the  time  of 
their  decease  were  inhabitants  of  or  resident  in  such 
county  .2 

Every  non-resident  administrator  appointed  by  a  probate 
court  or  the  supreme  judicial  court,  shall  appoint  in  writing 
an  agent  residing  in  the  commonwealth  upon  whom  ser- 
vice of  legal  process  can  be  made.  If  such  agent  dies  or 
removes  from  the  commonwealth,  another  agent  must  be 
appointed.  Such  non-resident  administrator  shall  not  be 
entitled  to  receive  his  letters  of  appointment  until  he 
has  complied  with  the  above  requirement.^ 

Administration  de  bonis  non.  —  If  a  sole  administrator 
dies  before  he  completes  the  trust  committed  to  him,  or 
is   removed    by  the   court,   or   resigns,  administration   de 

^  An  executor,  if  a  portion  of  the  estate  is  to  be  treated  as  intestate 
property,  may  administer  it  without  taking  out  letters  of  administra- 
tion.    McGreevy  v.  McGrath,  152  Mass.  24. 

2  R.  L.  c.  1G2,  §  3. 

8  R.  L.  c.  139,  §§  8,  9. 


APPOINTMENT   OF   ADMINISTRATORS.  103 

bonis  non  (of  the  estate  not  administered)  will  be  granted, 
provided  there  is  personal  estate  left  unadministered  to 
the  amount  of  twenty  dollars,  or  debts  to  that  amount  are 
remaining  due  from  tlic  estate.  ^ 

An  administrator  de  bonis  non  may  be  appointed  for 
the  purpose  of  finally  distributing  sums  of  money  which 
may  have  been  deposited  or  invested  by  order  of  the 
probate  court.  ^ 

Administration  ivith  the  Will  annexed. —  In  certain 
cases  administration  is  granted  of  testate  estates ;  where 
the  testator  omits  to  name  an  executor  in  his  w^ill,  or 
where  all  of  the  executors  named  in  the  will  are  dead  or 
incompetent,  or  refuse  to  accept  the  trust,  or  after  being 
cited  for  that  purpose  neglect  to  accept  the  trust,  or 
neglect  for  twenty  days  after  probate  of  the  will  to  give 
bond  according  to  law,^  or  if  the  only  executor  is  a 
minor.^  In  such  cases  administration  with  the  will 
annexed  is  granted. 

Administration  de  bonis  non  with  the  Will  annexed.  — 
When  a  sole  executor  or  administrator  with  the  wnll 
annexed  dies  after  entering  upon  the  duties  of  his  trust 
and  before  it  is  discharged,  or  is  removed  by  the  court,  or 
resigns,  administration  de  bonis  non  with  the  will  annexed 
is  granted,  provided  there  is  personal  estate  not  admin- 
istered to  the  amount  of  twenty  dollars,  or  debts  to  that 
amount  are  remaining  due  from  the  estate,  or  that  there  is 
anything  remaining  to  be  performed  in  execution  of  the 
will,  or  if  there  is  an  order  of  distribution  under  section  26 
of  chapter  150,  Rev.  Laws,  of  money  deposited  or  invested 
under  authority  of  the  probate  court.  ^ 

1  R.  L.  c.  137,  §  8. 

2  Ibid.  §  8.  8  Ibid.  §  6. 
*  Ibid.  §  7.                          6  Ibid.  §  8. 


104       rROCEEDINGS  IN  THE  PROBATE  COURTS. 

SjJccial  Administration.  —  "When  by  reason  of  delay  in 
granting  letters  testamentary  or  of  administration,  or 
when  for  any  other  cause  the  judge  of  the  })robate  court 
deems  it  expedient  to  do  so,  he  may,  at  any  time  and 
place,  and  with  or  without  notice  to  the  parties  interested, 
appoint  a  special  administrator  to  collect  and  preserve  the 
effects  of  the  deceased.  ^ 

Ancillary/  Admijiistration.  —  When  a  citizen  of  another 
state  or  country  dies  leaving  estate  to  be  administered  in 
this  state,  administration  of  such  estate  may  be  granted 
here.2  In  such  case,  the  administration  granted  here  is 
treated  as  merely  ancillary  or  auxiliary  to  the  principal 

1  R.  L.  c.  137,  §  9. 

2  R.  L.  c.  162,  §  3.  A  debt  due  the  deceased  from  an  inhabitant 
of  this  state  is  estate  that  may  be  administered  here.  Picquet,  Appel- 
lant, 5  Pick.  65;  Emery  v.  Hildreth,  2  Gray,  231;  Merrill  v.  New 
England  Insurance  Co.,  103  Mass.  248.  So  are  articles  of  furniture 
and  plate,  though  of  small  value;  anything  corresponding  to  bona 
notubilia  in  England  would  be  sufficient  for  that  puipose.  Harrington 
V.  Brown,  5  Pick.  521 ;  Pinney  v.  McGregory,  102  Mass.  186.  Wlien 
a  debtor  takes  iip  his  residence  in  this  state,  after  the  death  of  the 
creditor  in  another  state,  administration  on  the  creditor's  estate  will 
be  granted  in  this  state;  and  so  when  goods  are  brought  into  this 
state.  Dawes  v.  Boylston,  9  Mass.  337;  Wheelock  v.  Pierce,  6  Cush. 
288;  Pinney  v.  MoGregory,  supra;  Prescott  v.  Durfee,  131  Mass.  477. 
Prima  facie  evidence  that  a  deceased  non-resident  had  conveyed  real 
estate  in  this  state,  in  fraud  of  his  creditors,  is  sufficient  to  warrant 
the  grant  of  administration  here.  Bovvdoin  v.  Holland,  10  Cush.  17. 
If  the  deceased  left  only  real  estate  in  this  commonwealth,  administra- 
tion may  be  granted  here,  although  liis  estate  is  solvent  and  an  admin- 
istrator has  been  appointed  in  the  state  where  he  resided.  Prescott  v. 
Durfee,  131  Mass.  477.  But  if  he  left  no  estate  in  this  state,  admin- 
istration cannot  be  granted  here.  Crosby  v.  Leavitt,  4  Allen,  410. 
Where  administration  has  been  granted  in  any  county  on  the  estate 
of  a  deceased  non-resident,  parol  evidence  is  admissible  to  show  that 
the  deceased  left  estate  within  such  county,  although  no  such  estate 
■was  included  in  the  administrator's  inventory.  Harrington  ».  Brown, 
5  Pick.  519. 


APPOINTMENT   OF   ADMINISTRATOKS.  105 

administration  granted  in  the  jurisdiction  where  the 
deceased  dwelt.  The  appointment,  however,  of  an  ad- 
ministrator in  the  state  where  the  deceased  had  his 
domicile  is  not  a  necessary  prerequisite  to  the  granting  of 
such  ancillary  administration  ;  but  administration  of  the 
estate  in  this  state  may  be  granted,  although  no  adminis- 
trator has  been  appointed  in  the  foreign  state  ;  and  even 
if  the  deceased  left  a  will,  which  has  never  been  offered  for 
probate  in  the  place  of  his  domicile.^ 

1  Bowdoin  v.  Holland,  10  Cush.  17.  Executors  of  a  foreign  will 
have  no  right  to  act  and  dispose  of  the  estate  here  until  they  have 
probated  the  will  here,  and  letters  testamentary  have  been  issued  to 
them.  Welch  v.  Adams,  152  Mass.  83.  If  ancillary  administration  is 
taken  out  in  another  state  upon  the  estate  there  of  a  deceased  citizen 
of  Massachusetts,  a  judgment  there  i-endered  establishing  a  claim 
against  the  estate  is  not  binding  here.     Low  v.  Bartlett,  8  Allen,  259. 

The  bond  of  an  ancillary  administrator  is  to  return  an  inventory  of 
the  effects  coming  to  his  hands  within  this  state.  Dawes  v.  Boylston, 
9  Mass.  337.  Such  administrator  is  not  obliged  to  account  in  the 
jurisdiction  where  the  ancillary  letters  of  administration  were  issued, 
for  assets  received  elsewhere.  Fay  v.  Haven,  3  Met.  114.  Conversely, 
the  bond  of  an  administrator  here  does  not  cover  the  administration 
of  assets  collected  by  him  in  a  foreign  state  under  ancillary  letters  of 
administration.  Hooker  v.  Olmstead,  6  Pick.  480.  The  duty  of  an 
ancillary  administrator  is  to  collect  only  the  assets  found  within  his 
jurisdiction,  to  appropriate  so  much  of  them  to  the  payment  of  debts 
due  citizens  of  that  jurisdiction  as  would  be  authorized  by  the  general 
solvency  or  insolvency  of  the  estate,  and  to  remit  the  balance  to  the 
place  of  principal  administration.  Fay  u.  Haven,  supra;  Richards  y. 
Dutch,  8  Mass.  506.  If  the  deceased  had  a  domicile  in  a  foreign  state, 
his  effects  are  to  be  distributed  here  according  to  the  laws  of  that  state, 
or  transmitted  thither  for  distribution  by  the  administrator  there. 
Stevens  v.  Gaylord,  11  Mass.  25G.  A  foreign  executor  or  administra- 
tor who  takes  out  ancillary  administration  in  this  state,  is  not  obliged 
to  pay  debts  due  the  deceased's  creditors  here  because  he  has  assets  in 
his  hands  collected  in  the  foreign  state,  and  this  although  he  has  paid 
all  debts  which  the  deceased  owed  elsewhere,  and  has  a  balance  suffi- 
cient to  pay  all  debts  due  here.  Fay  v.  Haven,  supra.  An  adminis- 
trator appointed  under  the  laws  of  another  state  cannot  be  recognized 


106  PROCEEDINGS    IN   THE    PROBATE    COURTS. 


WITHIN   WHAT    TIME   ADMINISTRATION    MUST   BE   APPLIED    FOR. 

Administration  is  not  originally  granted  after  the  expi- 
ration of  twenty  years  from  the  death  of  the  testator  or 
intestate,^  except  when  any  property  or  claim  or  right 
thereto  remains  undistributed,  or  thereafter  accrues  to 
the  estate  and  remains  to  be  administered.  In  these 
excepted  cases_  original  administration  may  for  cause  be 
granted  on  such  property  ;  but  such  administration  shall 
affect  no  other  property .^ 

But  if  administration  has  once  been  granted,  and  left 
unfinished  by  the  death,  removal,  or  resignation  of  the 
executor  or  administrator,  administration  de  bonis  non 
may  be  granted  after  the  expiration  of  twenty  years. 
There  is  no  statute  limiting  the  time  of  granting  admin- 
istration of  estates  left  unadministered  by  a  former  ex- 
ecutor or  administrator.^ 

IN   WHAT   COUNTY   ADMINISTRATION    MUST   BE    APPLIED    FOR. 

The  petition  for  administration  must  be  presented  to  the 
probate  court  of  the  county  of  which  the  deceased  was  an 

in  the  courts  of  this  state  as  the  legal  representative  of  the  deceased. 
Beaman  v.  Elliot,  10  Cush.  172. 

1  K.  L.  c.  137,  §  3. 

2  Ibid.  §  4.  Administration  was  granted  when  the  only  property 
to  be  affected  thereby  was  a  promissory  note  secured  by  a  mortgage 
of  land,  and  the  land  had  been  for  more  than  twenty  years  in  the 
adverse  possession  of  the  person  opposing  the  petition  for  adminis- 
tration.    Parsons  v.  Spaulding,  130  Mass.  83. 

If  a  creditor  who  has  failed  to  receive  his  dividend  from  an  insol- 
vent estate  has  deceased,  an  administrator  may  be  appointed  to  receive 
and  administer  such  dividend,  although  more  than  twenty  years  have 
elapsed  since  his  death.     R,  L.  c.  142,  §  25. 

*  Bancroft  v.  Andrews,  6  Cush.  493. 


APPOINTMENT    OF    ADMINISTRATORS.  107 

inhabitant  or  in  which  he  was  resident  at  the  time  of  liis 
dcath.^ 

If  the  deceased  person  died  witliout  the  state,  applica- 
tion must  be  made  to  tlie  probate  court  of  the  county  in 
which  he  left  estate  to  be  administered.^ 

TO   WHOM    ORIGINAL   ADMINISTRATION   IS   GRANTED. 

The  statute  "  provides  that  — 

"  Sect.  1.  Administration  of  the  esta.te  of  a  person 
deceased  intestate  shall  be  granted  to  one  or  more  of  the 
persons  hereinafter  mentioned,  who  shall,  subject  to  the 
provisions  of  the  following  section,  be  entitled  thereto  as 
follows  : 

"  First,  His  widow  or  his  next  of  kin,  or  the  widow  jointly 
with  the  next  of  kin,  as  the  probate  court  may  determine. 

"  Second,  If  the  deceased  was  a  married  woman,  her 
husband,  if  he  is  competent  and  willing  to  undertake  the 
trust,  unless  it  is  necessary  or  proper  to  appoint  some  other 
person.* 

"  Third,  If  all  said  persons  are  incompetent  or  evi- 
dently unsuitable  for  the  discharge  of  the  trust,  or  re- 
nounce the  administration,  or  if,  without  sufficient  cause, 
they  neglect  for  thirty  days  after  the  death  of  the  intestate 
to  take  administration  of  his  estate,  one  or  more  of  the 
principal  creditors,  after  public  notice  upon  the  petition. 

1  R.  L.  c.  162,  §  3.  As  to  jurisdiction  depending  upon  the  question 
of  residence,  see  page  70,  notes. 

2  Pinney  v.  McGregory,  102  Mass.  186. 
8  R.  L.  c.  137,  §§1,2. 

*  If  the  marriaji^e  was  voidable,  the  husband  will  be  entitled  to 
administration,  unless  sentence  of  nullity  was  pronounced  before  her 
death.  If  it  was  void  from  the  beginning,  he  is  not  entitled  to  admin- 
ister.    1  Wms.  Ex.  (7th  Am.  ed.)  491. 


108       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Fourth,  If  there  is  no  such  creditor  willing  and  com- 
petent to  undertake  the  trust,  any  suitable  persons. 

"  Fifthy  If  there  is  no  widow,  husband,  or  next  of  kin 
within  this  commonwealth,  a  public  administrator  in  pref- 
erence to  creditors." 

"  Sect.  2.  Administration  of  the  estate  of  an  intestate 
may  be  granted  to  one  or  more  of  his  next  of  kin  or  any 
suitable  person,  if  his  widow  and  all  his  next  of  kin  resi- 
dent in  the  commonwealth,  who  are  of  full  age  and  legal 
capacity,  consent  in  writing  thereto.  Notice  of  the  peti- 
tion may  be  dispensed  with  as  if  all  parties  entitled  thereto 
had  signified  their  assent  or  waived  notice." 

The  policy  of  granting  administration  to  those  most 
directly  interested  in  the  estate  of  the  deceased  has  been 
long  established.  The  statute  31  Edw.  Ill,  c.  11,  which 
first  took  from  the  clergy  their  exclusive  right  to  adminis- 
ter, provided  that  "  the  ordinaries  shall  depute  of  the 
next  and  most  lawful  friends  of  the  dead  person  intestate 
to  administer  his  goods ;  "  and  the  statute  21  Henry  YIII, 
c.  5,  provided  that  administration  should  be  granted  "  to 
the  widow  of  the  deceased,  or  to  the  next  of  his  kin,  or 
to  both,  as  by  discretion  of  the  same  ordinary  shall  be 
thought  good."  This  language  of  the  statute  Henry  VIII 
was  followed  in  our  statute  of  1783  (c.  36),  and  still 
stands  without  material  change. 

A  domestic  trust  company  may  be  appointed  adminis- 
trator.^ 

Who  are  Next  of  Kin.  —  In  this  state,  the  degrees  of 
kindred  are  computed  according  to  the  rules  of  the  civil 
law,  which  makes  the  deceased  person  the  point  from 
whence  the  degrees  are  numbered.  Thus,  a  man's  parents 
are  related  to  him  in  the  first  degree,  and  so  are  his 
1  R.  L.  c.  116,  §  18. 


APPOINTMENT   OF    ADMINISTRATORS.  109 

children.  Both  are  equally  near,  but  in  granting  admin- 
istration the  children,  if  competent,  are  preferred,  they 
having  a  more  direct  interest  in  the  estate.  A  grand- 
son is  in  the  same  degree  of  kindred  to  the  intestate 
as  the  intestate's  brother,  but  is  preferred  for  the  same 
reason. 

Kindred  are  lineal  or  collateral.  Lineal  consanguinity 
is  that  subsisting  between  persons  who  are  all  in  a  direct 
line  of  descent,  one  from  the  other,  as  between  son, 
father,  and  grandfather ;  or  father,  son,  and  grandson, 
reckoning  either  upwards  or  downwards.  Collateral  kins- 
men are  those  who  are  descended  from  one  common 
ancestor,  but  not  one  from  the  other.  A  man  and  his 
cousins  are  collateral  relations  ;  they  both  descend  from 
the  same  grandfather,  but  not  lineally. 

The  next  lineal  kindred  of  an  intestate  are  easily  ascer- 
tained by  counting  either  directly  upwards  or  directly 
downwards  to  his  nearest  living  relative.  His  father  and 
son  arc  both  in  the  first  degree  ;  his  grandfather  and 
grandson  both  in  the  second.  The  nearness  of  a  collateral 
kinsman  to  the  intestate  is  ascertained  by  counting  up- 
wards to  the  common  ancestor  of  both,  and  then  follow- 
ing the  branch  downwards  until  the  collateral  kinsman 
is  reached,  reckoning  one  degree  for  each  person.  Thus, 
the  intestate's  brother  is  in  the  second  degree ;  this  is 
seen  by  counting  upwards  to  their  father,  their  common 
ancestor,  one  degree,  and  then  downwards,  collaterally, 
one  degree,  to  the  brother.  The  intestate's  uncle  is  in  the 
third  degree,  and  so  is  his  nephew.  His  cousin  is  in  the 
fourth. 

Following  this  computation  of  kindred,  and  observing 
the  preferences  arising  from  interest,  administration  of 
the  estate  of  an  intestate  will  be  granted  to  his  next  of 


110  PROCEEDINGS    IN   THE    PROBATE   COURTS. 

kin  in  the  following  order:  first,  to  children;  second,  if 
there  are  no  children,  to  parents ;  third,  if  there  are  no 
children  nor  parents,  to  brothers  and  sisters,  either  of  the 
whole  or  half  blood  ;  fourth,  to  grandparents  ;  fifth,  to 
nephews,  nieces,  uncles,  aunts ;  sixth,  to  cousins.  No 
distinction  is  made  between  kindred  on  the  father's  or 
mother's  side.  They  are  all  in  equal  degree  of  kindred, 
and  hence  it  may  happen  that  there  are  persons  equally 
related  to  the  intestate  and  equally  entitled  to  the  adminis- 
tration,* who  are  not  related  at  all  to  each  other. 

As  to  the  Right  of  the  Widow  and  Next  of  Kin  to  admin- 
ister. —  The  statute  does  not  give  the  widow  an  exclusive 
right  to  administer  her  husband's  estate  if  there  are  next 
of  kin  who  also  claim  the  right,  and  are  suitable  persons. 
The  right  is  first  in  the  widow  and  next  of  kin,  either  or 
both,  as  the  court  may  deem  fit ;  and  the  personal  suit- 
ableness of  the  widow  and  next  of  kin  is  to  be  considered 
in  making  the  appointment.  If  the  widow  is  evidently 
unsuitable,  the  next  of  kin,  if  competent,  is  entitled  to 
the  sole  administration.  If  the  next  of  kin  is  unsuitable, 
she,  if  competent,  may  take  administration  alone.  If  both 
are  suitable,  the  court  may  grant  administration  to  either, 
or  jointly  to  both ;  and  if  both  are  unsuitable,  the  applica- 
tion of  both  will  be  refused. 

And  where  there  are  several  persons  equally  entitled 
to  take  administration  as  next  of  kin,  and  equally  suitable, 
the  probate  court  has  power  to  appoint  one  or  more  of 
them. 

If  the  widow  and    next  of  kin,  as  is   often   the  case, 

renounce  the  administration,  their  renunciation  does  not 

give  them  a  right  to  nominate  a  substitute.^     There  may 

be  creditors  whose  right  to  administer  under  the  statute 

1  Cobb  V.  Newcomb,  19  Pick.  337. 


APPOINTMENT    OF    ADMINISTEATOES.  Ill 

is  prior  to  that  of  any  such  substitute.  But  where  there 
are  no  creditors  who  are  suitable,  or  if  the  creditors 
refuse,  after  being  cited,  to  take  the  administration,  any 
suitable  person  will  generally  be  appointed  on  the  recom- 
mendation of  the  widow  and  next  of  kin. 

Nor  will  the  renunciation  of  the  next  of  kin,  or  the  fact 
of  their  incompetency,  give  to  other  relatives  of  the  intes- 
tate any  rigJit  to  administer.  The  preference  made  by  the 
statute  is  of  the  7iext  of  kin,  and  if  they  decline,  or  are 
unsuitable,  creditors  are  preferred  to  other  kindred. 

As  to  the  Suitableness  of  the  Widow  or  Next  of  Kin.  — 
The  question  of  suitableness  must  depend,  in  some  meas- 
ure, upon  the  facts  of  each  case.^  A  person  may  be 
entirely  suitable  to  administer  when  little  more  than 
some  formal  proceeding  is  necessary  for  the  settlement 
of  the  estate,  and  may  be  unsuitable  when  the  duties  to  be 
discharged  are  of  a  different  character.  The  object  of 
administration  is  to  dispose  of  the  estate  of  the  intestate 
so  as  to  secure  the  rights  of  creditors  and  make  the  best 
provision  possible,  under  the  circumstances,  for  the  kin 
of  the  deceased.  A  person  of  unsound  mind  is  of  course 
unsuitable  for  such   a   trust,  and    so   is   a  person  whose 

^  It  has  been  held  that  the  widow  may  be  set  aside,  if  she  has 
barred  herself  of  all  interest  in  her  husband's  personal  estate  by  her 
marriage  settlement,  or  has  eloped  from  her  husband,  or  has  cohabited 
in  his  lifetime  with  another  man,  or  lived  separate  from  him.  If  she 
has  been  divorced,  a  mensa  et  thoro,  she  forfeits,  it  should  seem,  her 
right  to  administer.     1  Wms.  Ex.  (7th  Am.  ed.)  496. 

Where,  upon  the  application  of  the  widow,  it  appeared  that  she  was 
under  the  influence  of  a  person  who  was  indebted  to  the  estate  in  a 
large  amount,  and  who  was  charged  with  combining  with  the  intes- 
tate in  his  lifetime  to  defraud  his  creditors,  and  that  such  application 
was  made  at  the  request  of  such  debtor  and  not  to  protect  or  subserve 
the  interests  of  the  widow,  it  was  held  that  she  was  an  unsuitable 
person  to  administer.     Stearns  v.  Fiske,  18  Pick.  24. 


112       TROCEEDINGS  IN  THE  PROBATE  COURTS. 

relation  to  the  estate  is  such  as  to  create  the  presumption 
that  he  would  not  administer  with  a  due  regard  to  the 
rights  of  those  interested  in  the  estate.  The  fact  that 
one  of  several  next  of  kin  is  also  a  creditor  of  the  estate 
is  rather  adverse  to,  than  in  favor  of,  his  being  preferred. 
So,  if  he  owes  the  estate,  especially  when  the  balance  due 
has  not  been  definitely  ascertained.  A  man  who  is  accus- 
tomed to  business  details  is  more  suitable  for  the  ofifice  of 
administrator  than  one  who  is  not.  Unsuitableness  may 
be  occasioned  by  physical  debility,  want  of  memory,  or 
any  infirmity  which  would  prevent  the  efficient  discharge 
of  the  duties  required.  In  determining  the  question  of 
suitableness,  the  relations  of  the  applicant  to  the  estate 
and  to  the  other  parties  interested,  the  character  of  the 
duties  which  the'  condition  of  the  estate  will  be  likely  to 
require  of  the  administrator,  and  his  personal  fitness  for 
those  duties,  are  to  be  considered.  A  minor  cannot 
administer.^  A  citizen  of  another  state  or  country,  if 
otherwise  suitable,  may  be  appointed  to  administer  in 
this  state. 

The  fact  that  one  who  is  personally  unsuitable  is  ready 
to  give  bond  with  sufficient  sureties  for  the  faithful  dis- 
charge of  his  trust,  does  not  make  him  suitable.  The 
remedy  of  parties  damaged  by  his  official  misconduct 
by  action  on  his  bond,  may  subject  them  to  expense  of 
litigation  for  which  they  can  have  no  legal  adequate 
remedy  ;  and  besides,  an  administrator,  if  so  disposed, 
may  prejudice  the  interests  of  parties  concerned  without 
being  exposed  to  any  action.^ 

As  to  the  Right  of  Creditors  to  administer.  —  If  the 
widow   and   next   of   kin   are   incompetent,    or   evidently 

1  McGooch  ;;.  McGooch,  4  Mass.  348. 
*  Stearns  v.  Fiske,  18  Pick.  27. 


APPOINTMENT   OF   ADMINISTRATORS.  113 

unsuitable,  or  if  they  neglect  for  thirty  days  after  the 
intestate's  death  to  take  administration  of  his  estate,  the 
court  grants  administration  to  one  or  more  of  the  princi- 
pal creditors.  This  right  is  given  to  the  creditor  under 
such  circumstances,  in  order  that  the  collection  of  his 
claim  may  not  be  defeated  for  want  of  an  administrator. 
The  creditor  applying  must  satisfy  the  court  that  he 
is  a  creditor,  and  this  he  may  do  by  exhibiting  his  books 
of  account  or  other  evidences  of  debt.  The  amount  of  his 
claim  seems  not  to  be  material,^  but  the  claim  must  be 
one  which  by  law  survives.^  The  creditor  cannot  be 
appointed,  however,  until  after  the  widow  and  next  of  kin 
have  been  cited,  and  had  opportunity  either  to  take  or 
renounce  the  administration.  The  same  considerations  as 
to  personal  suitableness  apply  to  a  creditor  who  petitions 
for  a  grant  of  administration  as  to  one  next  of  kin.  If 
the  deceased  left  no  widow,  husband,  or  next  of  kin  in 
this  state,  administration  is  granted  to  a  public  adminis- 
trator in  preference  to  creditors.^ 

1  Arnold  v.  Sabin,  1  Cush.  525.  In  this  case  the  claim  of  the 
creditor  who  was  appointed  was  for  fifty-eight  cents. 

"  Smith  V.  Sherman,  4  Cush.  408;  Stebbins  v.  Palmer,  1  Pick.  71 ; 
Norton  v.  Sewall,  106  INIass.  145;  Chase  v.  Fitz,  132  Mass.  359;  Brown 
V.  Cushman,  173  Mass.  368. 

As  to  survival  of  actions  and  the  death  and  disabilities  of  parties, 
see  R.  L.  c.  171 ;  and  as  to  actions  by  and  against  execfttors  and 
administrators,  see  R.  L.  c.  172.  For  provision  to  protect  the  rights 
of  a  cj'editor  whose  cause  of  action  does  not  accrue  within  two  years 
after  the  giving  of  the  administration  bond,  see  R.  L.  c.  141,  §  13, 
and  Bassett  v.  Drew,  176  Mass.  141. 

8  If  an  application  for  administration  is  not  made  within  four 
months  from  the  time  of  the  decease  of  the  pei'son  leaving  an  estate 
liable  to  a  tax  on  collateral  legacies  and  successions,  or  a  will  dispos- 
ing of  such  estate  is  not  offered  for  probate,  the  treasurer  of  the 
commonwealth  may  make  application  for  the  appointment  of  an 
administrator.     R.  L.  c.  15,  §  18. 

8 


114       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

As  to  the  Right  of  Other  Persons  to  administer.  —  The 
statute  regulating  the  granting  of  administration  further 
provides,  — 

"  Fourth,  If  there  is  no  such  creditor  willing  and  compe- 
tent to  undertake  the  trust,  administration  may  be  granted 
to  such  person  as  the  court  may  deem  fit. 

^^  Fifth,  If  there  is  no  widow,  husband,  or  next  of  kin, 
within  the  commonwealth,  administration  shall  be  granted 
to  a  public  administrator  in  preference  to  creditors." 

When  Administration  is  granted  to  a  Public  Adminis- 
trator. —  The  statute  provides  for  the  appointment  in  each 
county  of  one  or  more  public  administrators,  and  makes 
it  the  duty  of  such  administrator  to  administer  upon  the 
estate  of  any  person  who  dies  intestate  within  his  county 
or  dies  elsewhere,  leaving  property  in  such  county  to  be 
administered,  and  not  leaving  a  known  husband,  widow, 
or  heir  in  this  state.  But  the  administration  will  not 
be  granted  to  the  public  administrator  when  the  husband, 
widow,  or  any  heir  of  the  deceased  claims  in  writing  the 
right  of  administering,  or  requests  the  appointment  of 
some  other  suitable  person,  if  such  husband,  widow,  heir, 
or  other  person  accepts  the  trust  and  gives  bond ;  and  such 
husband,  widow,  heir,  or  other  person  may  be  appointed 
after  letters  of  administration  have  been  granted  to  a 
public  administrator  and  before  the  final  settlement  of  the 
estate.  When  the  person  so  appointed  gives  the  bond 
required  by  law,  the  power  of  the  public  administrator 
over  the  estate  ceases.^ 

TO  WHOM  OTHER  THAN  ORIGINAL  ADMINISTRATION  IS  GRANTED. 

Neither  the  widow  nor  next  of  kin  have  a  right  to  claim 
the  grant  of  administration  de  bonis  non?     The  priority 
1  R.  L.  c.  138,  §§  1-4.  2  Russell  v.  Hoar,  3  Met.  190. 


APPOINTMENT   OF  ADMINISTRATORS.  115 

of  right  to  administer  is  regulated  entirely  by  statute, 
and  a  distinction  in  this  particular  is  made  between  origi- 
nal and  other  administration.  It  is  provided,  in  case 
of  the  death,  resignation,  or  removal  of  the  original  exec- 
utor or  administrator,  without  having  fully  administered 
the  estate,  that  administration  with  the  will  annexed, 
or  otherwise,  as  the  case  may  require,  may  be  granted 
to  "  some  suitable  person "  to  administer  the  estate  not 
already  administered.^ 

These  provisions,  while  they  do  not  exclude  any  person 
from  the  administration,  give  the  probate  court  full  dis- 
cretion in  the  selection  of  the  new  administrator.  In 
some  cases  where  administration  with  the  will  annexed 
is  granted,  the  next  of  kin  may  have  no  interest  in  the 
estate.  They  may  take  nothing  under  the  provisions  of 
the  will,  or  their  legacies  may  have  been  paid  to  them  by 
the  original  executor.  In  such  cases,  the  residuary  leg- 
atee, or  other  person  interested  under  the  will,  is  entitled 
to  administer,  the  general  policy  of  the  law  in  granting 
administration  being  to  give  the  management  of  the  prop- 
erty to  the  person  who  has  the  beneficial  interest  in  it. 

PROCEEDINGS   IN   PROBATE   COURT.  —  PRACTICE. 

The  Petition. — The  person  claiming  administration 
must  apply  by  petition  in  writing  to  the  probate  court 
having  jurisdiction  of  the  case.  The  petition  should  set 
forth  the  fact  of  the  death  of  the  person  whose  estate  is 
to  be  administered,  the  time  of  his  death,  the  county  of 
which  he  was  last  an  inhabitant  or  in  which  he  was  resi- 
dent, and  the  grounds  on  which  the  petitioner  claims  the 
right  to  administer.  The  petition  should  also  state  the 
name  and  residence  of  the  widow,  if  any,  of  the  deceased, 
1  R.  L.  c.  137,  §  8. 


116  PROCEEDINGS    IN   THE    PIIOBATE    COURTS. 

and  the  names,  residences,  and  degree  of  kindred  of  his 
next  of  kin.  If  the  next  of  kin  are  minors,  the  fact  should 
be  stated.  If  the  petition  is  by  a  creditor,  the  fact  that 
the  widow  and  next  of  kin  have  neglected  for  thirty  days 
since  the  intestate's  death  to  take  administration  should  be 
stated.  There  must  be  annexed  to  the  petition  the  affidavit 
of  the  petitioner  that  the  statements  therein  made  are  true 
to  the  best  of  iiis  knowledge  and  belief.^ 

If  the  petition  is  for  the  appointment  of  a  special  admin- 
istrator, the  reasons  for  which  letters  testamentary  or  of 
administration  are  delayed,  whether  in  consequence  of  a 
suit  concerning  the  proof  of  a  will  or  other  cause,  should 
be  stated  in  the  petition. 

If  the  petitioner  is  a  stranger  to  the  estate,  the  rea- 
sons upon  which  he  bases  his  application  should  be  fully 
stated. 

When  a  public  administrator  petitions,  the  fact  that  the 
deceased  left  no  husband,  widow,  or  heir  in  this  state 
should  be  set  forth. 

If  the  petition  is  for  other  than  original  administration 
it  should  set  forth  the  fact  of  the  death,  resignation,  or 
removal  of  the  executor  or  original  administrator  ;  and  it 
should  also  appear  from  the  petition  that  there  is  personal 
estate  of  the  deceased  remaining  to  be  administered  to  the 
amount  of  twenty  dollars,  or  that  there  are  debts  to  that 
amount  remaining  due  from  the  estate,  or  that  something 
remains  to  be  performed  in  execution  of  the  will. 

Notice  to  Persons  interested.  —  The  next  step  in  the  pro- 
ceedings is  the  notification  of  all  persons  interested  of  the 
pendency  of  the  petition.  This  is  absolutely  necessary 
when  the  petitioner  is  a  creditor  or  person  other  than  the 
husband,  widow,  or  next  of  kin  of  the  deceased,  unless  all 

1  K.  L.  c.  136,  §  1. 


APPOINTMENT   OF   ADMINISTRATORS.  117 

persons  having  an  equal  or  prior  right  to  administer  assent 
to  the  appointment  of  the  petitioner,  or  renounce  their 
right.  The  neglect  of  the  widow  and  next  of  kin  for 
thirty  days  after  the  intestate's  death  to  take  administra- 
tion does  not  render  their  citation  the  less  necessary, 
although  a  literal  construction  of  the  statute  would  seem 
to  indicate  otherwise.^  The  citation  need  not  be  person- 
ally served  upon  the  widow  and  next  of  kin.  It  may  be 
difficult  in  many  cases  to  ascertain  who  arc  the  next  of 
kin,  and  if  personal  service  was  required,  the  proceedings 
would  necessarily  be  attended  with  uncertainty  and  delay. 
The  statute  does  not  define  the  manner  in  which  the  cita- 
tion shall  be  served,  but  leaves  it  to  the  discretion  of  the 
court.  Ordinarily,  publication  of  a  general  notice  to  all 
parties  interested  will  be  a  sufficient  citation.  Any  person 
interested  in  the  estate  may  appear  and  show  cause  for 
or  against  the  appointment  of  the  person  named  in  the 
petition. 

If  the  person  or  persons  whose  right  to  administer  is 
prior  or  equal  to  the  petitioner's  renounce  administration 
in  writing,  the  delay  and  expense  of  a  citation  may  be 
avoided.  But  if  the  person  having  such  prior  claim  comes 
into  court  and  verbally  declines  to  take  administration,  it 
is  not  enough.  The  renunciation,  to  be  effectual,  must  be 
recorded,  and  should  therefore  be  made  in  writing  in  all 
cases.2 

1  Arnold  v.  Sabin,  1  Cush.  525. 

2  Ibid.;  and  see  Stebbins  v.  Lathrop,  4  Pick.  44. 
Administration  of  the  estate  of  an  intestate  may  be  granted  to  one 

or  more  of  his  next  of  kin  or  any  suitable  person,  when  the  widow 
of  the  deceased  and  all  his  next  of  kin  resident  in  the  commonwealth, 
who  are  of  full  age  and  legal  capacity,  consent  in  writing  thereto. 
And  the  notice  required  by  law  may  be  dispensed  with  as  if  all  parties 
entitled  thereto  had  signified  their  assent  or  waived  notice.  R.  L. 
o.  137,  §  2. 


118       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

As  to  Proof  of  the  Death.  —  The  questions  usually  raised 
in  cases  where  the  petitioner's  appointment  is  contested 
relate  to  his  suitableness  for  the  trust,  or  to  the  priority 
of  his  right.  It  is  not  often  that  any  doubt  exists  of  the 
death  of  the  person  whose  estate  is  the  subject  of  the 
petition,  but  such  cases  occur  where  the  long-continued 
absence  of  the  person,  without  being  heard  of,  renders  his 
death  probable,  though  the  fact  cannot  be  proved.  After 
the  lapse  of  seven  years,  without  intelligence  concerning 
him,  the  law  presumes  that  he  is  dead,  and  administration  is 
granted  accordingly.  It  must  appear,  however,  that  he  has 
not  been  heard  from  by  persons  who  would  have  been  likely 
to  hear  from  him,  if  living,  or  that  ineffectual  search  has 
been  made  for  him.  But  though  the  presumption  of  death 
does  not  attach  to  the  mere  lapse  of  time,  short  of  seven 
years,  the  fact  of  death  may  be  found  from  a  shorter  period 
when  other  circumstances  concur ;  as  if  the  party  sailed 
on  a  voyage  which  should  long  since  have  been  accom- 
plished, and  the  vessel  has  not  been  heard  from  :  under 
such  circumstances  administration  has  been  granted  after 
the  lapse  of  one  year.^ 

The  fact  of  the  absence  of  the  person  without  having 
been  heard  from  for  the  period  of  seven  years  is  only 
presumptive  evidence  of  his  death;  and  if  administration 
is  granted  upon  his  estate,  and  it  should  subsequently 
appear  that  the  supposed  deceased  person  was,  in  fact, 
living  at   the  time  administration  was  granted,  the  pro- 

^  Administration  was  granted  in  January,  1858,  on  the  estate  of 
A.,  who  sailed  from  Liverpool  in  January,  1857,  for  Valparaiso  ;  the 
voyage  should  have  been  made  in  ten  weeks;  nothing  had  been  heard 
of  the  ship.  Held,  that  payment  by  the  underwriters  of  the  amount 
for  which  the  ship  was  insured  was  very  strong  evidence  in  support  of 
the  petition  for  administration.  In  the  Goods  of  Main,  1  Swa.  & 
Trist.  11. 


ArPOIXTMENT   OF    ADMINISTRATORS.  119 

ceedings  of  the  probate  court  will  be  held  void  for  want 
of  jurisdiction. 1 

Administrators,  Bonds.  —  The  appointment  of  the  ad- 
ministrator or  administrators  is  made  complete  by  the 
approval  of  the  bond  required  of  them  by  statute.  The 
bond  must  be  with  sufficient  surety  or  sureties,  in  such 
sum  as  the  judge  of  the  probate  court  orders,  payable  to 
the  judge  ^  and  his  successors,  and  with  condition,  in  the 
case  of  an  original  administrator,  to  make  and  return  to 
the  probate  court  within  three  months  a  true  inventory  of 
all  the  intestate's  real  and.  personal  estate,  which  at  the 
time  of   the  making  of   such   inventory  shall  have  come 

1  Jochumsen  v.  Suffolk  Savings  Bank,  3  Allen,  87;  Harden  v. 
Boston,  155  Mass.  359;  Melia  v.  Simmons,  45  Wis.  334;  D'Arnsment 
V.  Jones,  4  Lea  (Tenn.),  251. 

A  decree  allowing  a  will  or  adjudicating  the  intestacy  of  the 
estate  of  a  deceased  person  in  any  court  in  this  commonwealth  having 
jurisdiction  thereof  shall,  after  two  years  from  the  rendition  of  such 
decree,  or,  if  proceedings  for  a  reversal  thereof  are  had,  after  two 
years  from  the  establishment  of  such  decree,  be  final  and  conclusive 
in  favor  of  purchasers  for  value,  in  good  faith,  without  notice  of  any 
adverse  claim,  of  any  property,  real  or  personal,  from  devisees,  lega- 
tees, heirs,  executors,  administrators,  or  guardians,  and  in  favor  of 
executors,  administrators,  trustees,  and  guardians,  who  have  settled 
their  accounts  in  due  form,  and  have  in  good  faith  disposed  of  the 
assets  of  the  estate  in  accordance  with  law,  and  also  in  favor  of  per- 
sons who  have  in  good  faith  made  payments  to  executors,  administra- 
tors, trustees,  or  guardians.  It  is,  however,  provided  that  devisees, 
legatees,  heirs,  and  distributees  shall,  in  case  of  a  subsequent  decree 
reversing  or  qualifying  the  decree  so  originally  rendered,  be  liable  to 
a  subsequent  executor,  administrator,  or  other  person  found  entitled 
thereto,  for  any  proceeds  or  assets  of  the  estate  received  by  them 
under  the  former  decree,  and  in  such  case  proceeds  of  real  estate  shall 
be  treated  as  real  estate.  It  is  provided  further  that  the  provisions  of 
section  3  of  chapter  136  of  the  Revised  Laws  shall  not  make  an  adju- 
dication of  the  fact  of  death  conclusive.     R.  L.  c.  136,  §  3. 

^  In  Suffolk  and  in  Middlesex,  the  bond  is  payable  to  the  first 
(senior)  judge  of  probate.     R.  L.  c.  164,  §  2. 


120       PEOCEEDINGS  IN  THE  PROBATE  COURTS. 

to  the  possession  or  knowledge  of  the  administrator;  to 
administer  according  to  law  all  the  personal  estate  of  the 
deceased  which  may  come  to  the  possession  of  the  admin- 
istrator or  of  any  person  for  him,  and  also  the  proceeds  of 
any  real  estate  that  may  be  sold  or  mortgaged  by  the 
administrator  ;  to  render  upon  oath  a  true  account  of  his 
administration  at  least  once  a  year  until  his  trust  is  ful- 
filled, unless  he  is  excused  tlierefrom  in  any  year  by  the 
court,  and  at  such  other  times  as  the  court  may  order ; 
to  pay  to  such  persons  as  the  court  may  direct  any  bal- 
ance remaining  in  his  hands  upon  the  settlement  of  his 
accounts  ;  and  to  deliver  his  letters  of  administration  into 
the  probate  court  in  case  any  will  of  the  deceased  is  there- 
after proved  and  allowed.^  The  condition  of  the  bond 
required  of  an  administrator  de  bonis  non  is  the  same  as 
that  of  an  administrator  originally  appointed. 

Administrators  with  the  will  annexed,  and  administrators 
de  bonis  non  with  the  will  annexed,  are  required  to  give 
bond  in  like  manner  and  with  like  condition  as  is  required 
of  an  executor  ;  and  when  such  administrator  is  the  resid- 
uary legatee  under  the  will,  the  court  may  permit  him  to 
give  a  bond  similar  to  that  which  may  be  given  by  an 
executor  who  is  such  legatee.^ 

An  administrator  of  an  estate,  or  an  administrator  with 

^  R.  L.  c.  149,  §  1.  An  executor  or  admiuistrator  must  not  only 
make  a  return  of  the  property  in  his  hands  liable  to  taxation,  but  must 
in  addition,  in  case  of  a  partial  or  total  distribution,  give  notice  thereof 
to  the  assessors,  stating  the  names  and  residences,  and  the  amount 
paid  to  the  several  parties  interested  who  are  residents  of  this  com- 
monwealth, in  order  to  discharge  his  duty  and  avoid  taxation,  if  it  is 
within  three  years  of  his  appointment,  for  the  amount  last  assessed  to 
him.  Vaughan  v.  Street  Commissioners,  154  Mass.  143.  But  see 
Batchelder  v.  Cambridge,  176  Mass.  384. 

2  R.  L.  c.  149,  §  2. 


APPOINTMENT   OF   ADMINISTRATORS.  121 

the  will  annexed,  shall  be  exempt  from  giving  a  surety  or 
sureties  on  his  bond,  when  all  the  persons  interested  in 
the  estate,  who  are  of  full  age  and  legal  capacity,  other 
than  creditors,  certify  to  the  probate  court  their  consent 
thereto  ;  but  not  until  all  the  creditors  of  the  estate,  and 
the  guardian  of  any  minor  interested  therein,  have  been 
notified  and  have  had  opportunity  to  show  cause  against 
the  same  ;  but  such  administrator  shall  in  all  cases  give 
his  own  personal  bond,  with  conditions  as  prescribed  by 
law  ;  provided,  that  the  probate  court  may  at  or  after  the 
granting  of  letters  of  administration  require  a  bond,  with 
sufficient  surety  or  sureties.^ 

Every  administrator  who  neglects  to  give  bond,  with 
surety  or  sureties,  when  required  by  the  probate  court 
within  such  time  as  it  directs,  in  accordance  with  this 
act,  shall  be  considered  to  have  declined  or  resigned  the 
trust. 2 

The  bond  of  a  special  administrator  is  conditioned  to 
return  an  inventory  within  such  time  as  the  court  shall 
order  ;  to  account  on  oath  for  all  the  estate  of  the  de- 
ceased that  shall  be  received  by  him  as  such  special 
administrator,  whenever  required  by  the  probate  court; 
and  to  deliver  the  same  to  whoever  shall  be  appointed 
executor  or  administrator  of  the  deceased,  or  to  such 
other  person  as  shall  be  lawfully  entitled  to  receive  the 
same.^ 

A  public  administrator  may  give  a  separate  bond  for 
every  estate  which  he  is  called  upon  to  administer,  or  he 
may  give  a  general  bond  for  the  faithful  administration  of 
all  estates  on  which  administration  is  granted  to  him  as 
public  administrator.     His  separate  bond  is  the  same  as 

1  R.  L.  c.  149,  §  3.  2  Ibid.  §  8.  «  Ibid.  §  1. 


122       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

tbat  required  of  other  original  administrators,  with  the 
further  condition  that  if  an  executor  or  administrator  is 
appointed  as  his  successor  in  any  case,  to  surrender  his 
letters  of  administration  into  tlie  probate  court,  with  an 
account  of  his  doings  therein,  and  to  pay  over  to  his  suc- 
cessor all  property  of  the  deceased  not  administered.^  His 
general  bond  is  conditioned  to  return  into  the  probate 
court,  within  three  months  from  the  time  letters  of  admin- 
istration are  granted  to  him  on  the  estate  of  any  person 
deceased,  a  true  inventory  of  all  the  real  and  personal 
estate  of  such  person  which  at  the  time  of  making  such 
inventory  shall  have  come  to  his  possession  or  knowledge  ; 
to  administer  according  to  law  all  personal  estate  of  every 
such  person  which  may  come  to  the  possession  of  said  ad- 
ministrator or  of  any  person  for  him,  and  also  the  pro- 
ceeds of  any  of  the  real  estate  of  such  person  that  may  be 
sold  by  said  administrator;  to  render  upon  oath  a  true 
account  of  his  administration  of  every  such  estate  at 
least  once  a  year  until  the  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  the  court,  and  at  such 
other  times  as  the  court  may  order ;  to  pay  the  balance  of 
every  such  estate  remaining  in  his  hands  upon  the  settle- 
ment of  his  accounts  to  such  persons  as  the  court  may 
direct ;  and  when  such  estate  has  been  fully  administered 
to  deposit  with  the  treasurer  of  the  commonwealth  the 
whole  amount  remaining  in  his  hands ;  upon  the  appoint- 
ment and  qualification  in  any  case  of  an  executor  or 
administrator  as  his  successor,  to  surrender  into  the  pro- 
bate court  his  letters  of  administration  in  such  case,  with 
an  account  under  oath  of  his  doings  therein  and,  upon 
a  just  settlement  of  such  account,  to  pay  over  and  deliver 
to  such  successor  all  sums  of  money  remaining  in  his 
1  R.  L.  c.  138,  §§  5,  6. 


APPOINTMENT   OF    ADMINISTRATORS.  123 

hands,  and  all  property,  effects,  and  credits  of  the  deceased 
not  then  administered.^ 

Upon  the  approval  of  the  bond  by  the  judge  of  the  pro- 
bate court,  letters  of  administration  issue  to  the  person 
appointed,  who  may  forthwith  proceed  in  the  execution 
of  his  trust  unless  an  appeal  is  taken  from  the  decree 
making  the  appointment.^  But  a  special  administrator 
may  proceed,  notwithstanding  an  appeal  is  taken,  until  it 
is  otherwise  ordered  by  the  supreme  court  of  probate.^ 

Autliority  of  a  Special  Administrator.  —  It  is  the  duty 
of  a  special  administrator  to  collect  all  of  the  personal 
property  of  the  deceased  and  to  preserve  it  for  the  executor 
or  administrator,  and  he  may  begin  and  maintain  suits  for 
that  purpose.  If  he  is  appointed  by  reason  of  delay  in 
granting  letters  testamentary,  the  court  may  authorize  him 
to  take  charge  of  the  real  estate  of  the  deceased  or  of  any 
part  of  it,  to  collect  the  rents,  to  make  necessary  repairs, 
and  to  do  all  other  things  which  the  court  may  consider 
needful  for  the  preservation  of  the  property.^     The  court 

1  R.  L.  c.  138,  §  7. 

2  When  the  decree  of  a  judge  of  probate,  appointing  an  admin- 
istrator, is  appealed  from,  the  authority  of  such  administrator  is 
thereby  suspended,  and  any  further  proceedings  by  him  in  that  capac- 
ity are  irregular.  Arnold  v.  Sabin,  4  Cash.  47  ;  Smith  v.  Smith,  175 
Mass.  483. 

On  an  appeal  from  a  decree  of  the  probate  court  granting  letters 
of  administration,  the  court  may  reverse  the  decree  appointing  the 
administrator,  and  affirm  it  as  to  the  residue.  Dexter  u.  Brown,  3  Mass. 
32.  If  the  sole  heir  and  distributee  of  an  estate  free  from  debt,  upon 
which  no  administration  is  taken  out  in  his  lifetime,  takes  possession 
of  the  entire  property,  believing  that  he  has  a  right  to  do  so,  and 
transfers  the  property  upon  a  good  consideration,  the  transferee  gains 
no  title  to  the  property,  legal  or  equitable,  as  against  the  administra- 
tor of  the  estate  appointed  after  the  distributee's  death.  Pritchard  v. 
Norwood,  155  Mass.  539. 

8  R.  L.  c.  137,  §  9.  4  Ibid.  §  10. 


124       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

may  also  authorize  him  to  sell  any  of  the  property  in 
his  charge  and  to  do  anything  else  which  in  the  opinion  of 
the  court  may  be  required,  so  far  as  the  court  might  author- 
ize an  administrator  to  do,  except  that  a  special  adminis- 
trator may  be  authorized  to  continue  the  business  of  the 
deceased  for  the  benefit  of  his  estate.^  He  may  also  pay 
such  reasonable  allowance  as  may  be  made  by  the  court 
as  an  advancement  for  the  support  of  Jthe  widow  or 
children  of  the  deceased  ;2  and  may,  by  leave  of  court, 
pay  from  the  personal  property  in  his  hands  the  expenses 
of  the  last  sickness  and  funeral  of  the  deceased,  expense 
incurred  by  the  executor  named  in  the  will  of  the  deceased 
in  proving  the  will  in  the  probate  court  or  in  sustaining 
proof  of  it  in  the  supreme  judicial  court,  and  also,  after 
notice,  such  debts  due  from  the  deceased  as  the  court 
may  approve.^ 

The  powers  of  the  special  administrator  cease  upon  the 
granting  of  letters  testamentary  or  of  administration,  and 
it  is  then  his  duty  to  deliver  to  the  executor  or  adminis- 
trator, or  to  such  person  as  is  otherwise  lawfully  author- 
ized to  receive  it,  all  the  estate  of  the  deceased  in  his 
hands.* 

A  special  administrator  is  not  liable  to  an  action  by 
a  creditor  of  the  deceased,  and  the  time  of  limitation  for 
all  actions  against  the  estate  begins  to  run  only  after 
the  granting  of  letters  testamentary  or  of  administration 
in  the  usual  form,  in  like  manner  and  subject  to  the  same 
conditions  as  if  special  administration  had  not  been 
granted ;  ^  but  if  an  appeal  is  taken  from  the  decree  of  the 
probate  court  appointing  an  executor  or  administrator  the 

1  R.  L.  c.  137,  §  11.  9  Ibid.  §  12. 

8  Ibid.  §  13.  *  Ibid.  §  14. 

6  Ibid.  §  15. 


ArrOINTMENT    OF   ADMINISTKATORS.  125 

time  runs,  if  the  decree  is  affirmed,  from  the  time  of  affirma- 
tion if  the  bond  has  been  filed,  and,  if  not,  from  the  date  of 
the  filing  of  the  bond  ;  if  the  decree  is  reversed,  from  the 
time  when  an  appointment  is  finally  made  or  affirmed  and 
the  bond  is  filed. 


CHAPTER  VI. 

APPOINTMENT  OF  GUARDIANS. 

The  probate  court,  wlien  it  appears  necessary  or  con- 
venient,  may  appoint  guardians  of  minors  and  others  who 
are  inhabitants  of  or  residents  in  the  county,  or  who  reside 
out  of  tliis  commonwealth  and  have  estate  within  the 
county.^ 

OF   MINORS. 

A  father  is  the  guardian  by  nature  of  his  infant  child  ; 
and  on  his  death  the  mother ;  ^  the  natural  guardian  has 

^  R.  L.  c.  145,  §  1.  A  guardian  of  a  minor  residing  in  the  town  of 
West  Roxbury,  in  the  county  of  Norfolk,  was  appointed  by  the  pro- 
bate court  of  that  county  before  the  annexation  of  tliat  town  to  the 
city  of  Boston  and  county  of  Suffolk  by  the  St.  of  1873,  c.  314,  and 
after  such  annexation  resigned  his  guardianship,  and  his  resignation 
was  accepted  by  that  court,  but  he  still  held  in  his  hands  the  property 
of  the  minor,  and  the  minor  continued  to  reside  in  the  same  territory. 
Held,  that  by  §  3  of  that  statute  the  jurisdiction  to  appoint  a  new 
guardian  of  the  minor  was  in  the  probate  court  of  the  county  of  Suf- 
folk. Harding  v.  Weld,  128  Mass.  587.  See  also  Cutts  v.  Hodgdon, 
147  Mass.  21. 

A  judgment  cannot  properly  be  rendered  in  a  civil  action  against 
an  infant  who  has  no  probate  guardian  or  guardian  ad  litem,  although 
his  parents  in  fact  represent  him  at  the  trial  and  by  the  aid  of  counsel 
defend  the  action  on  his  behalf.  Johnson  v.  Waterhouse,  152  Mass. 
585.     See  also  Conto  v.  Silvia,  170  Mass.  152. 

2  The  inother  of  a  bastard  is  its  natural  guardian  while  she  is  un- 
married.    Wright  V.  Wright,  2  Mass.  109. 

By  St.  1902,  c.  474,  section  4  of  chapter  145  of  the  Revised  Laws  was 
amended  so  as  to  put  the  father  and  the  mother  on  an  equality  as  to 
the  custody  of  the  person  of  a  minor  child  and  the  care  of  his  educa- 
tion. 


APPOINTMENT   OF   GUAliDIANS.  127 

custody  of  the  infant's  person,  but  cannot  act  in  matters 
relating  to  the  infant's  estate.  If  therefore  an  infant 
acquires  property  by  inheritance  or  otherwise,  the  appoint- 
ment of  a  guardian  may  be  as  necessary  during  the  life- 
time of  the  father  as  after  his  decease. 

If  tlie  minor  is  under  the  age  of  fourteen  years,  the  pro- 
bate court  may  nominate  and  appoint  his  guardian.^  If 
he  is  above  that  age,  he  may  nominate  his  own  guardian, 
but  his, choice  is  not  conclusive  upon  the  court.  If  in  the 
opinion  of  the  court  the  person  nominated  is  not  suitable 
for  the  trust,  the  court  will  reject  him ;  and  if  the  infant 
will  not  choose  a  proper  person,  the  court  will  nominate 
and  appoint  a  guardian.  If  the  minor  resides  without  the 
state,  or  if,  after  being  cited,  he  neglects  to  nominate  a 
suitable  person,  the  court  may  appoint  his  guardian  as  if 
he  were  under  the  age  of  fourteen  years.^ 

The  nomination  of  a  guardian  by  a  minor  above  the  age 
of  fourteen  years  may  be  made  before  a  justice  of  the 
peace,  special  commissioner,  or  a  city  or  town  clerk.^ 

The  minor,  for  whom  a  guardian  has  been  appointed, 
may,  on  his  arrival  at  the  age  of  fourteen  years,  nominate 
a  new  guardian ;  but  such  nomination  does  not,  as  of 
right,  vacate  the  appointment  previously  made.  His  choice 
will  be  sanctioned  or  not,  as  the  discretion  of  the  court 
shall  direct. 

The  guardian  of  a  minor  has  the  custody  and  tuition  of 

^  A  written  agreement  by  the  mother  (herself  an  infant)  of  a  boy 
less  than  fourteen  years  old,  whose  father  is  dead,  to  surrender  all  her 
rights  of  custody  of  the  child  to  other  persons,  gives  no  such  right  to 
the  child  as  to  control  the  discretion  of  the  probate  court  in  subse- 
quently appointing  another  person  his  guardian  with  the  mother's 
assent.     Gloucester  v.  Page,  105  Mass.  231. 

2  R.  L.  c.  145,  §  2. 

3  Ibid.  §  3. 


128       PROCEEDINGS  IN  THE  TROBATE  COUKTS. 

his  ward,  and  the  care  and  management  of  all  his  estate,^ 
and,  unless  sooner  discharged  according  to  law,  continues 
in  office  until  the  minor  arrives  at  the  age  of  twenty-one 
years.  But  the  parents  of  the  minor,  if  living,  and  in 
case  of  the  death  of  either,  the  surviving  parent,  they  being 
respectively  competent  to  transact  their  own  business,  and 
fit  persons  for  the  trust,  are  entitled  to  the  custody  of  the 
person  of  the  minor  and  the  care  of  his  education  ;2  but 
the  probate  court  may  order  that  the  guardian  shall  have 
such  custody,  if,  upon  a  hearing  and  after  such  notice  to 
the  parents  or  surviving  parent  as  it  may  direct,  it  finds 
such  parents  or  parent  to  be  unfit  to  have  such  custody,  or 
if  it  finds  one  of  them  unfit  therefor,  and  the  other  files  in 
court  his  or  her  consent  in  writing  to  such  order.^ 

^  The  property  of  a  person  under  guardianship  may  be  taken  on 
execution  issued  against  him  ;  it  may  therefore  be  attached  on  mesne 
process  in  all  the  usual  modes,  including  trustee  process.  Guardians 
are  not  invested  with  the  legal  title  of  the  ward's  property ;  they  have 
only  the  conti'ol  and  management  of  it,  — a  power  not  coupled  with  an 
interest.  They  can  make  no  contract  binding  on  his  person  or  estate. 
Simmons  v.  Almy,  100  Mass.  239;  Lombard  v.  Morse,  155  Mass.  136. 
A  guardian  in  suing  for  debts  due  his  ward,  must  sue  in  the  name  of 
the  ward.  Gurney  v.  Waldron,  137  Mass.  379,  and  cases  cited  ;  Tyler 
V.  Odd  Fellows  Association,  145  Mass.  134  ;  Richmond  v.  Adams  Na- 
tional Bank,  152  Mass.  364.  In  a  suit  against  an  insane  person  under 
guardianship  the  writ  should  be  served  on  the  insane  person  and  notice 
of  the  pendency  of  the  action  should  be  given  to  the  guardian.  Taylor 
V.  Lovering,  171  ]\Iass.  303. 

2  R.  L.  c.  145,  §  4,  as  amended  by  St.  1902,  c.  474.  A  father  is  not 
liable  for  the  support  of  his  minor  child  after  the  custody  of  the  child 
has  been  given  to  the  mother  by  a  decree  of  the  supreme  judicial 
court  under  the  statute  of  1874,  c.  205.  Brow  v.  Brightman,  130  Mass. 
187 ;  see  also  Foss  v.  Hartwell,  168  Mass.  66.  St.  1874,  c.  205,  is  now 
embodied,  substantially,  in  R.  L.  c.  153,  §  33. 

^  R.  L.  c.  145,  §  4.  The  judge  of  probate  of  any  county  may  ap- 
point the  Massachusetts  Society  for  the  Prevention  of  Cruelty  to  Chil- 
dren guardian  of  a  minor  under  fourteen  years  of  age  resident  therein, 
who  is  without  a  guardian,  and  is  entirely  abandoned,  or  treated  with 


APPOINTMENT   OF   GUARDIANS.  129 

The  probate  court,  upon  tlie  application  of  a  guardian 
entitled  to  the  custody  of  his  minor  ward,  may  order 
either  or  both  of  the  parents  of  the  ward  to  contribute 
to  the  support  and  maintenance  of  such  minor  in  such 
sums  and  at  such  times  as  it  determines  are  just  and 
reasonable/ 

A  domestic  trust  company  may  be  appointed  guardian, 
but  such  appointment  shall  apply  to  the  estate  and  not  to 
the  person  of  the  ward.^ 

Who  are  suitable  for  the  Trust.  —  A  guardian,  having 
the  control  of  the  estate  of  his  ward,  should  possess  the 
qualifications  necessary  to  its  judicious  management. 
The  interests  of  the  ward  sometimes  render  necessary  the 
sale  of  the  estate,  or  portions  of  it,  and  a  new  investment 
of  the  proceeds  ;  a  proper  discharge  of  the  trust  in  such 
cases  can  be  best  promoted  by  the  appointment  of  a  guar- 
dian of  business  experience.  In  case  of  the  death  or 
unfitness  of  the  minor's  parents,  the  guardian  has  the  cus- 
tody and  tuition  of  his  ward,  and  he  should  therefore  be  a 

gross  and  habitual  cruelty  by  the  parent  or  other  person  having  the 
care  or  custody  of  him,  or  is  illegally  deprived  of  liberty.  Upon  the 
complaint  of  the  society  that  a  child  under  five  years  of  age  has  been 
abandoned  in  a  public  place,  or  in  a  vacant  dwelling,  a  judge  of  any 
court  within  his  jurisdiction  may  give  the  custody  of  such  child  for  a 
period  not  exceeding  thirty  days  to  said  society. 

In  Hampden  County  the  foregoing  provisions  shall  be  applicable  to 
the  Hampden  County  Children's  Aid  Association  in  like  manner  as  to 
the  Massachusetts  Society  for  the  Prevention  of  Cruelty  to  Children. 
R.  L.  c.  83,  §§  29,  31,  83. 

The  Boston  Children's  Friend  Society  is  empowered  to  become  the 
guardian  of  minors,  St.  1885,  c.  362  ;  also  the  Home  for  Destitute 
Catholic  Children,  St.  1891,  c.  312,  formerly  known  as  the  Associa- 
tion for  the  Protection  of  Destitute  Roman  Catholic  Children,  St. 
1890,  c.  117. 

1  R.  L.  c.  145,  §  28. 

2  R.  L.  c.  116,  §  18. 

9 


130       TROCEEDINGS  IN  THE  TROBATE  COURTS. 

person  not  indifferent  to  the  happiness  of  his  ward,  and 
competent  to  direct  his  education.^ 

It  is  advisable,  when  practicable,  that  the  guardianship 
be  given  to  some  person  whose  natural  affection  for  the 
ward  will  prompt  him  to  the  faithful  discharge  of  his 
trust ;  for  it  often  occurs  that  the  minor's  sole  security  is 
in  the  affection  or  the  personal  integrity  of  his  guardian. ^ 
The  sureties  on  a  guardian's  bond,  though  entirely  suffi- 
cient at  the  time  they  sign  it,  may  prove,  when  the  minor 
arrives  at  full  age,  —  perhaps  at  the  end  of  ten  or  fifteen 
years,  —  to  be  bankrupt  as  well  as  their  principal;  and 
in  such  case,  if  the  guardian  is  dishonest,  the  minor  is 
without  remedy.  The  court  can,  of  course,  order  the 
guardian  to  file  a  bond  with  new  sureties  at  any  time  ; 
but  it  is  sometimes  the  fact  that  the  only  person  living 
who  can  be  expected  to  interest  himself  in  the  welfare  of 
the  ward  is  the  guardian  who  is  wronging  him,  and  thus 
the  insufficiency  of  the  bond  may  not  be  brought  to  the 
notice  of  the  court  until  it  is  too  late. 

1  Where  both  parents  are  dead,  the  guardian  appointed  in  the  courts 
of  this  state  will  have  the  exclusive  right  to  the  custody  of  the  person 
of  the  child  so  long  as  the  child  continues  within  this  jurisdiction  ;  but 
the  question  of  the  proper  custody  of  the  child  as  between  a  domestic 
guardian  and  one  appointed  in  the  place  of  the  domicile  of  the  infant 
is  to  be  decided  by  the  supreme  judicial  court  on  habeas  corpus  or  other 
proper  process.  Neither  the  domestic  nor  foreign  guardian  has  an  ab- 
solute right  to  the  custody  of  the  infant.  In  determining  the  question 
to  whose  custody  the  child  shall  be  committed,  his  welfare  and  perma- 
nent good  is  the  controlling  consideration.  Commonwealth  i'.  Briggs, 
16  Pick.  203  ;  Woodworth  v.  Spring,  4  Allen,  321. 

'^  Conduct  of  a  guardian  tending  to  alienate  the  affection  of  his 
infant  ward  from  its  mother,  who  is  a  person  of  good  character,  is  a 
sufficient  cause  for  his  removal  from  the  trust.  Perkins  v.  Finnegan, 
105  Mass.  501.  Mere  unsuitableness,  without  misconduct  of  any 
kind,  is  sufficient  cause  for  the  removal  of  a  guardian.  Gray  v.  Parke, 
155  Mass.  433. 


APPOINTMENT   OF   GUARDIANS.  131 

An  administrator  ought  not,  while  he  is  engaged  in  the 
settlement  of  an  estate,  to  be  appointed  guardian  of  a 
minor  who  is  an  heir  to  the  same  estate,  unless  there  are 
decided  personal  reasons  for  the  appointment.  The  two 
trusts  are  incompatible.  It  is  the  duty  of  the  guardian 
to  inspect  the  proceedings  of  the  administrator,  to  examine 
his  accounts,  and  to  cause  him  to  be  cited  if  he  is  negli- 
gent in  his  administration.  It  is  obvious  that  these 
essential  duties  might  not  be  discharged  when  both  the 
administration  and  guardianship  were  in  the  hands  of  the 
same  person. 

Testamentary  Guardians.  —  A  father,  or,  in  case  the 
father  has  died  without  exercising  the  power,  a  mother, 
may  by  his  or  her  last  will  in  writing  appoint,  subject 
to  the  approval  of  the  probate  court,  a  guardian  for  his 
or  her  child,  whether  born  at  the  time  of  making  the 
will,  or  afterwards,  to  continue  during  the  minority  of 
the  child  or  a  less  time.  Such  testamentary  guardian  has 
the  same  powers,  and  performs  the  same  duties  with 
regard  to  the  person  and  estate  of  the  ward,  as  a  guardian 
appointed  by  the  probate  court.^  But  a  testator  can 
appoint  a  guardian  for  his  own  children  only.  He  cannot 
appoint  guardians  for  other  children,  although  he  gives 
them  his  property.^ 

The  Petition  for  the  appointment  of  a  minor  under  the 
age  of  fourteen  years  is  usually  made  by  the  father  or 
mother  of  the  minor,  if  either  of  them  is  living ;  if  they 
are  not  living,  by  some  relative  or  friend  of  the  minor. 
If  the  petition  is  by  any  person  other  than  a  parent, 
the  assent   of   the   parents,  or  the   survivor  of  them,  to 

1  R.  L.  c.  145,  §  5. 

'^  Brighara  v.  Wheeler,  8  Met.  127;  Ward  well  v.  Wardwell,  9  Allen, 
518. 


132       PROCEEDINGS  IN  THE  TROBATE  COURTS. 

the  appointment  prayed  for  should  be  indorsed  on  the 
petition.  If  both  parents  are  dead,  such  assent  may  be 
given  by  the  next  of  kin ;  or,  if  there  are  no  known 
next  of  kin,  by  the  persons  who  have  the  care  of  the 
minor.  When  such  assent  is  expressed,  the  appointment 
prayed  for  is  usually  made  at  once  ;  otherwise,  a  citation 
may  be  issued  to  parties  interested  before  any  appoint- 
ment is  raade.^  The  petition  should  state  the  full  name 
of  the  minor,  the  date  of  his  birth,  his  residence,  the  full 
name  and  last  place  of  residence  of  his  father,  and  the 
ground  upon  which  the  petitioner  claims  the  appointment. 

If  the  petition  is  for  the  appointment  of  some  person 
other  than  a  parent  of  the  minor,  and  alleges  the  unfitness 
of  the  parents  to  have  the  custody  of  the  child,  the 
appointment  prayed  for  cannot  be  made  until  after  notice 
to  the  parents  or  surviving  parent,  and  a  hearing.^ 

If  the  minor  is  above  the  age  of  fourteen  years,  he  may 
appear  in  court  and  nominate  his  guardian,  or  he  may 
make  his  nomination  before  a  justice  of  the  peace,  a 
special  commissioner,  or  a  city  or  town  clerk.^  In  such 
cases,  the  petition  may  be  made  by  the  person  nominated 
by  the  minor,  and  a  certificate  of  the  fact  of  the  nomina- 
tion should  be  indorsed  on  the  petition  by  the  justice, 
commissioner,  or  clerk  before  whom  it  is  made.     If   the 

■^  Publication  of  notice  is  not  essential  under  the  Pub.  Sts.  c.  139, 
§§  2,  3,  now  embodied  in  R.  L.  c.  145,  §§  2,  3,  to  the  validity  of  an 
appointment  by  the  probate  court  of  a  guardian  for  a  minor  under 
fourteen  years  of  age.  Notice  may,  of  course,  be  ordered  by  the  pro- 
bate court,  if  deemed  advisable  in  any  case,  and  a  guardian  ad  litem 
might  properly  be  appointed  to  represent  the  minor,  if  that  court 
thought  it  best;  but  neither  is  essential  to  the  validity  of  the  appoint- 
ment.    Gibson,  Appellant,  154  Mass.  378. 

2  R.  L.  c.  145,  §  4. 

«  Ibid.  §  3. 


APPOINTMENT    OF   GUARDIANS.  133 

minor  neglects  to  nominate   a  guardian,  any   person  in- 
terested may  petition. 

Temporary  Guardians.  —  Upon  the  application  of  the 
mayor  of  a  city,  the  selectmen  of  a  town,  the  overseers 
of  the  poor  of  a  city  or  town,  or  other  person  in  interest, 
the  judge  of  the  probate  court  may,  after  giving  due 
notice  according  to  the  rules  of  the  probate  court,  appoint 
a  temporary  guardian  of  a  minor,  insane  person,  or  spend- 
thrift, and  may,  with  or  without  notice,  remove  or  dis- 
charge him  or  terminate  the  trust.  If  the  court  finds 
that  the  welfare  of  the  minor  requires  the  immediate 
appointment  of  a  guardian  of  his  person,  such  appoint- 
ment may  be  made  without  notice.  A  temporary  guardian 
shall  continue  in  the  execution  of  his  duties,  notwithstand- 
ing an  appeal  from  the  decree  appointing  him,  until  it 
is  otherwise  ordered  by  the  supreme  judicial  court,  or 
until  his  trust  is  otherwise  legally  terminated.^  A  tem- 
porary guardian,  until  his  removal  or  the  appointment  of 
a  permanent  guardian,  has  the  same  powers  and  duties 
as  a  permanent  guardian,  and,  in  certain  cases,  is  entitled 
to  the  sole  custody  and  control  of  the  ward.^ 


OF   INSANE  PERSONS   AND    SPENDTHRIFTS. 

The  probate  court  may  appoint  a  guardian  for  an  insane 
person,  and  for  a  person  who  so  wastes  his  property  by 
excessive  drinking,  gaming,  idleness,  or  debauchery  of  any 
kind  as  to  expose  himself  or  his  family  to  want  or  suffer- 
ing, or  any  city  or  town  to  charge  or  expense  for  the 
support  of  himself  or  his  family.^ 

The  application  for  the  appointment  of   a  guardian  of 

1  R.  L.  c.  145,  §  20.  2  Ibid.  §  21.  «  Ibid.  §§  6,  7. 


134       PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

an  insane  person  may  be  made  by  the  relations  or  friends 
of  such  person,  or  by  the  mayor  and  aldermen  or  select- 
men of  the  city  or  town  of  which  such  person  is  an 
inhabitant  or  resident. 

In  the  case  of  a  spendthrift,  the  overseers  of  the  poor 
of  the  city  or  town  of  which  he  is  an  inhabitant  or  resident, 
or  upon  which  ho  is  or  may  become  chargeable,  or  a  re- 
lation or  relations  of  such  spendthrift,  may  file  a  petition 
in  the  probate  court,  stating  the  facts  and  circumstances 
of  the  case  and  praying  to  have  a  guardian  appointed.  In 
towns  in  which  overseers  of  the  poor  are  not  chosen  and 
in  which  selectmen  act  as  overseers  of  the  poor,  the  select- 
men may  file  such  petition.  The  capacity  in  which  the 
complainants  act  should  be  stated  in  the  petition.^ 

In  all  cases,  notice  of  not  less  than  fourteen  days  is 
given  to  the  supposed  insane  person  or  spendthrift  of  the 

^  R.  L.  0.  145,  §  71.  A  copy  of  the  petition  for  appointment  of  a 
guardian  of  a  spendthrift,  and  of  the  order  of  notice  thereon,  may  be 
recorded  in  the  registry  of  deeds  for  the  county  or  district  in  which 
any  land  of  the  supposed  spendthrift  is  located  ;  and  if  a  guardian  is 
appointed  on  such  petition,  all  contracts,  except  for  necessaries  or 
relative  to  land,  and  all  gifts,  sales,  or  transfers  of  personal  property, 
made  by  the  spendthrift  after  an  order  of  notice  upon  the  petition  has 
been  issued  by  the  probate  court,  and  all  contracts  relative  to  and 
sales  and  conveyances  of  land  made  by  the  spendthrift  after  such  rec- 
ord in  the  registry  of  deeds,  for  the  county  and  district  in  which  the 
land  is  located,  and  before  the  termination  of  the  guardianship,  will 
be  void,  even  though  the  other  party  cannot  be  put  in  statu  quo.  R.  L. 
c.  145,  §  8.  Chandler  v.  Simmons,  97  Mass.  508 ;  Dubd  v.  Beaudry, 
150  Mass.  449 ;  White  v.  New  Bedford  Waste  Corporation,  178  Mass. 
20.  An  assignment  will  not,  after  the  death  of  the  assignor,  be  held 
to  be  invalid,  because,  nine  years  before  the  execution  of  the  assign- 
ment, the  assignor  was  placed  under  guardianship  as  a  spendthrift, 
if  the  person  appointed  guardian  did  not  accept  the  office,  although 
the  decree  of  the  probate  court  appointing  him  has  not  been  revoked. 
O'Dounell  v.  Smith,  142  Mass.  505. 


APPOINTMENT   OF   GUARDIANS.  135 

time  and  place  appointed  for  the  hearing.^  The  notice 
must  be  served  in  the  manner  directed  by  the  court,  and 
no  appointment  can  be  made  until  after  due  service  of  the 
notice.  If  the  insane  person  has  previously  been  under 
guardianship,  and  the  office  of  guardian  has  in  any  way 
become  vacant,  notice  must  be  given  to  him  before  a  new 
guardian  can  be  appointed ;  and  he  is  entitled  to  be  heard 
upon  the  subject  of  the  complaint  in  like  manner  as  if  he 
had  not  been  under  guardianship.^ 

At  the  time  and  place  named  in  the  citation  the  com- 
plainants and  the  supposed  insane  person  or  spendthrift 
will  be  heard.  Acts  of  the  person  complained  of  at  or  near 
the  time  of  making  the  complaint  may  be  proved  for  the 
purpose  of  showing  the  state  of  his  mind  and  his  manner  of 
life,  but  not  his  acts  at  a  remote  period.  If  after  a  full 
hearing  it  appears  that  the  person  complained  of  is  unable 
to  take  care  of  himself  by  reason  of  insanity,  or  is  so  waste- 
ful of  his  property  that  a  guardian  is  needed  to  protect  his 
family  or  the  public,  a  suitable  person  will  be  appointed. 

The  guardian  appointed  should  not  only  be  a  suitable 
person  in  a  general  sense,  but  as  far  as  is  practicable 
should  be  fitted  to  discharge  the  duties  rendered  necessary 
by  the  particular  condition  and  necessities  of  the  ward. 
It  is  not  enough,  in  every  case,  that  the  guardian  is  faithful 
and  competent  to  manage  the  ward's  estate  to  advantage ; 
he  should  be  a  person  capable  of  exercising  a  proper  in- 
fluence and  judicious  control  over  his  ward.  The  perma- 
nent improvement  and  substantial  welfare  of  the  ward  are 
the  main  objects  of  the  guardianship ;  and  the  guardian 
who   has   the  care  and  custody  of  his  person   should  be 

1  R.  L.  c.  145,  §§6,7. 

2  AUis  V.  Morton,  4  Gray,  63;  Harding  v.  Weld,  128  Mass.  591; 
O'Donnell  v.  Smith,  142  Mass.  505. 


136       PKOCEEDINGS  IN  THE  PKOBATE  COURTS. 

personally  fitted,  by  his  relations  to  the  ward  and  other- 
wise, to  promote  these  objects.^  In  many  cases,  the  deter- 
mination of  the  question  of  suitability  may  be  influenced  by 
the  wishes  of  the  ward  ;  for  a  man  may  be  so  insane  as  to 
be  a  fit  subject  for  guardianship,  and  yet  have  a  sensible 
opinion  and  strong  feeling  as  to  the  person  to  be  placed  over 
him ;  and  the  reasonable  wishes  of  such  a  person  should  be 
consulted  by  the  court. 

When  a  guardian  is  appointed  for  an  insane  person  or 
spendthrift,  the  court  makes  an  allowance,  to  be  paid  by 
the  guardian,  for  all  reasonable  expenses  incurred  by  the 
ward  in  defending  himself  against  the  petition.^  Such 
guardian  has  the  care  and  custody  of  the  person  of  his 
ward  and  the  management  of  all  his  estate.  The  hus- 
band or  wife  of  an  insane  person  who  desires  to  convey 
his  or  her  real  property  absolutely  or  by  mortgage,  may 
file  a  petition  in  the  probate  court  describing  such  real 
property,  and  praying  that  the  dower  of  the  wife,  or  an 
estate  of  homestead,  or  a  tenancy  by  the  curtesy  at  common 
law  or  by  statute  of  the  husband  therein  may  be  released, 
and  stating  the  facts  and  reasons  why  the  prayer  of  the 
petition  should  be  granted.  The  court  may,  after  notice 
and  a  hearing,  by  a  decree  authorize  the  guardian  of  the 
insane  person  to  make  the  release  by  joining  in  any  deed  or 
deeds,  mortgage  or  mortgages,  of  the  whole  or  a  part  of  said 
real  property,  made  within  five  years  after  said  decree  by 
the  husband  or  wife  of  the  insane  person,  or  by  a  trustee 
for  such  husband  or  wife.^  When  a  guardian  of  an  insane 
husband  or  of  an  insane  wife  is  authorized  to  release  such 

^  A  guardian  may  prosecute  a  divorce  on  behalf  of  his  insane  ward. 
Garnett  v.  Garnett,  114  Mass.  379. 
2  R.  L.  c.  145,  §  9. 
8  R.  L.  c.  153,  §  19. 


APPOINTMENT   OF   GUARDIANS.  137 

tenancy  by  the  curtesy  of  the  husband,  or  dower  of  the 
wife,  or  an  estate  of  homestead,  and  the  court  finds  that 
part  of  the  proceeds  of  the  real  property  sold  should  be 
reserved  for  the  use  of  the  ward,  it  may  order  that  a  part 
of  the  proceeds,  exclusive  of  any  encumbrance  existing  on 
the  property  at  time  of  sale,  shall  be  paid  over  to  the 
guardian  and  to  be  invested  by  the  guardian  for  the  benefit 
of  the  ward ;  such  part  of  the  proceeds  not  to  exceed  one- 
third  of  the  net  proceeds  in  case  of  release  of  curtesy  or 
dower,  nor  to  exceed  eight  hundred  dollars  in  case  of 
release  of  homestead ;  and  in  the  last  named  case,  the 
amount  so  paid  to  the  guardian  to  be  invested  in  a  home- 
stead and  held  by  the  guardian  for  the  benefit  of  the  insane 
■wife,  if  she  survives  her  husband,  the  rent  or  use  of  it  to 
be  enjoyed  by  the  husband  during  his  wife's  life,  and  the 
homestead  to  be  his,  and  to  be  conveyed  to  him  by  the 
guardian,  if  the  husband  survives  the  wife.^ 

If  the  husband  or  wife  of  an  insane  person  conveys  real 
property  in  trust  without  power  of  revocation  and  makes  a 
provision  therein  for  the  insane  husband  or  wife  which  the 
probate  court,  after  notice  and  a  hearing,  finds  is  sufficient 
in  lieu  of  dower,  the  trustee  may  convey  such  real  property 
free  from  all  right  of  curtesy  or  dower,  and  if  the  court 
finds  that  the  provision  for  husband  or  wife  is  sufficient 
in  lieu  of  curtesy  or  dower,  either  in  the  whole  or  in  par- 
ticular portions  of  the  real  property  of  the  husband  or  wife, 
the  guardian  will  be  authorized  to  release  curtesy  or  dower 
in  the  whole  or  in  such  particular  portions,^  He  may  be 
discharged  by  the  probate  court  on  the  application  of  the 
ward  or  otherwise,  when  it  appears  that  such  guardianship 
is  no  longer  necessary.^ 

1  R.  L.  c.  153,  §§  20,  21,  22.  2  ibid.  §§  23,  24. 

'  R.  L.  c.  145,  §  11.    A  ward  may  appeal  from  a  decree  of  the  judge 


138       PROCEEDINGS  IN  THE  PROBATE  COURTS. 


OP  PERSONS  OUT  OF  THE  STATE. 

A  guardian  may  be  appointed  for  a  minor,  insane  person, 
or  spendthrift,  residing  out  of  this  state,  and  having  estate 
here,  upon  the  petition  of  any  friend  of  such  person,  or 
any  one  interested  in  his  estate,  in  expectancy  or  otherwise. 
The  application  may  be  made  to  the  probate  court  of  any 
county  in  which  there  is  any  estate  of  such  absent  person  ;^ 
and  after  such  notice  to  all  persons  interested  as  the  court 
shall  order,  and  after  a  full  hearing  and  examination,  a 
guardian  may  be  appointed.  Such  guardian  has  the  same 
powers  and  duties  with  respect  to  any  estate  of  the  ward 
found  within  this  state,  and  also  with  respect  to  the  person 
of  the  ward  if  he  comes  to  reside  therein,  as  are  prescribed 
for  other  guardians.^ 

If  a  person  who  is  a  resident  in  another  state  is  entitled 
to  property  of  any  description  in  this  commonwealth,  and 
is  under  the  guardianship  of  a  person  who  is  also  a  resi- 
dent in  such  other  state,  who  produces  to  the  probate  court 
of  the  county  in  which  such  property  or  the  principal  part 
thereof  is  situated  a  full  and  complete  and  duly  exempli- 

of  probate  against  his  application  to  have  the  letters  of  guardianship 
revoked,  and  need  not  give  bonds  to  prosecute  the  appeal.  McDonald 
V.  Morton,  1  Mass.  543  ;  Lawless  v.  Reagan,  128  Mass.  594. 

In  the  absence  of  an  expi'ess  contract,  no  action  can  be  sustained 
against  a  guardian  to  charge  him  jjersonally  with  the  support  and  edu- 
cation of  his  ward.  Spring  v.  Woodworth,  4  Allen,  326;  Hicks  v. 
Chapman,  10  Allen,  464.  The  appointment  of  a  guardian  to  a  spend- 
thrift, under  R.  L.  c.  145,  §  7,  after  the  latter's  purchase  of  goods,  but 
before  their  delivery,  does  not  affect  his  liability  for  the  price.  ]\Iyer 
V.  Tighe,  1.31  Mass.  3.54. 

^  If  the  estate  of  the  person  liable  to  be  put  under  guardianship 
consists  in  part  of  personal  property  held  in  trust  for  him,  the  probate 
court  of  the  county  where  the  trustee  resides  has  jurisdiction  to  ap- 
point the  guardian.     Clarke  v.  Cordis,  4  Allen,  466. 

2  R.  L.  c.  145,  §§  16,  17. 


APPOINTMENT   OF   GUARDIANS.  139 

fied  or  authenticated  transcript  from  the  records  of  a 
court  of  competent  jurisdiction  in  such  other  state,  show- 
ing that  he  has  there  been  appointed  such  guardian,  and 
has  given  a  bond  and  security  in  double  the  value  of  the 
property  of  such  ward,  then  such  transcript  may  be  recorded 
in  tlie  probate  court,  and  the  guardian  will  be  entitled  to 
receive  from  the  court  letters  of  guardianship  of  the  estate 
of  the  ward  in  this  commonwealth  which  shall  authorize 
liim  to  care  for  and  manage  the  real  and  personal  property 
of  such  ward,  to  collect  the  rents  and  profits  therefrom, 
and  to  demand,  sue  for,  and  recover  any  such  property,  and 
to  remove  any  of  the  movable  property  or  estate  of  such 
ward  out  of  this  commonwealth,  if  such  removal  will  not 
conflict  with  the  terms  and  limitations  attending  the  right 
by  which  the  ward  holds  the  same.  The  court  may  also 
order  any  resident  guardian  ,  executor,  or  administrator, 
having  any  of  the  ward's  estate,  to  deliver  the  same  to  any 
person  who  has  so  taken  out  letters  of  guardianship.^ 

OF   MARRIED   WOMEN. 

The  statutes  allowing  married  women  to  hold  property 
to  their  own  use  free  from  the  control  of  their  husbands 
rendered  necessary  some  provisions  for  the  care  of  the 
separate  property  of  minor  and  insane  married  women. 
And  it  is  now  provided  that,  "  if  a  married  woman  owns 
property,  real  or  personal,  a  guardian  may  be  appointed  to 
her  for  the  same  causes,  in  the  same  manner,  and  with  the 
same  powers  and  duties,  as  if  she  were  sole,  except  as  here- 
inafter provided.  But  a  guardian  shall  not  be  so  appointed 
without  such  notice  to  the  husband  as  the  court  may  order. 

"  Such  guardian  shall  not  have  the  care,  custody,  or 
education  of  his  ward,  except  in  case  of  the  insanity  of 

1  R.  L.  c.  145,  §  19. 


140       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

her  husband,  or  in  case  of  his  abandoning  her  by  absenting 
himself  from  the  commonwealth  and  making  no  sufficient 
provision  for  her, 

"  Such  guardian  shall  not  apply  the  property  of  his  ward 
to  the  maintenance  of  herself  and  her  family  while  she  is 
married,  unless  he  is  thereto  authorized  by  the  probate 
court  on  account  of  the  inability  of  her  husband  suitably 
to  maintain  her  or  them,  or  for  other  cause  which  the 
court  considers  sufficient."  ^ 

And  when  a  married  woman  is,  by  reason  of  insanity 
or  infancy,  incompetent  to  release  her  right  of  dower  or 
right  of  homestead  in  her  husband's  lands,  a  guardian 
may  be  appointed  for  her  in  the  same  manner  as  if  she 
were  sole,  with  the  powers  and  duties  given  to  guardians 
of  married  women  owning  property,  and  the  husband  or 
any  suitable  person  may  be  appointed.^ 

The  guardian  of  an  insane  married  woman  may  be 
authorized  by  the  probate  court  to  release  his  ward's 
dower  interest  or  estate  of  homestead  in  any  real  estate 
of  her  husband  which  he  desires  to  convey.^ 

The  petition  for  the  appointment  of  a  guardian  of  a 
married  woman  should  be  in  the  general  form  prescribed 
for  petitions  for  guardians  of  minors  and  insane  persons, 
as  the  case  may  be,  and  should  particularly  state  the 
reasons  for  which  the  proposed  guardianship  is  necessary. 

guardians'  bonds. 

The  guardian  of  a  minor  appointed  by  the  probate  court 
is  required  to  give  bond,  with  surety  or  sureties,  to  the 
judge  of  the  probate  court,  in  such  sum  as  he  shall  order, 
with  condition  to  make  and  return  to  the  probate  court  at 
such  time  as  it  may  order  a  true  inventory  of  all  the  real 

1  R.  L.  c.  145,  §§  12-14.        2  Ibid.  §  15.        «  R.  L.  c.  153,  §  19. 


APPOINTMENT    OF   GUARDIANS.  141 

and  personal  estate  of  the  ward  that  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession 
or  knowledge  of  the  guardian  ;  to  manage  and  dispose  of  all 
such  estate  according  to  law  and  for  the  best  interests  of 
the  ward,  and  faithfully  to  discharge  his  trust  in  relation 
to  such  estate,  and  to  the  custody,  education,  and  main- 
tenance of  the  ward ;  to  render  upon  oath,  at  least  once  a 
year  until  his  trust  is  fulfilled,  unless  he  is  excused  there- 
from in  any  year  by  the  court,  a  true  account  of  the  prop- 
erty in  his  hands,  including  the  proceeds  of  all  real  estate 
sold  or  mortgaged  by  him,  and  of  the  management  and 
disposition  thereof,  and  also  to  render  such  account  at 
such  other  times  as  the  court  may  order  ;  and,  at  the  ex- 
piration of  his  trust,  to  settle  his  account  in  the  probate 
court,  or  with  the  ward  or  his  legal  representatives,  and 
to  pay  over  and  deliver  all  the  estate  remaining  in  his 
hands,  or  due  from  him  on  such  settlement,  to  the  person 
or  persons  lawfully  entitled  thereto.^ 

A  testamentary  guardian  gives  bond  with  the  same  con- 
dition as  if  appointed  by  the  court,  except  that  he  is 
exempt  from  giving  a  surety  or  sureties  on  his  bond, 
when  the  testator  has  ordered  or  requested  such  exemp- 
tion, or  that  no  bond  should  be  required;  but  he  must 
in  all  cases  give  his  own  personal  bond  ;  and  the  court 
may  require  him  to  give  a  bond  with  sureties  at  any 
time  when  it  deems  it  proper,  by  reason  of  a  change  in 
the  guardian's  situation  or  circumstances,  or  for  other 
sufficient  cause.  A  testamentary  guardian  who  neglects 
to  give  bond  in  accordance  with  law  is  considered  to  have 
declined  or  resigned  the  trust.^ 

1  R.  L.  c.  149,  §  1,  cl.  6;  McKim  v.  Mann,  141  Mass.  507;  Murray 
V.  Wood,  144  Mass.  197;  Tliorudike  v.  Hinckley,  155  Mass.  266. 

2  R.  L.  c.  149,  §§  4,  7. 


142       PEOCEEDINGS  IN  THE  PROBATE  COURTS. 

When  the  custody  of  a  minor  is  given  to  a  guardian, 
for  the  reason  that  one  or  both  of  the  parents  are  unfit 
to  have  such  custody,  the  guardian  may  be  allowed, 
in  the  discretion  of  the  court,  to  give  a  bond  without 
a  surety  ;  but  the  court  may  at  any  time,  when  it  deems 
the  protection  of  the  ward's  interests  renders  it  necessary, 
require  liim  to  give  a  bond  with  sureties.^ 

The  condition  of  the  bond  given  by  the  guardian 
of  an  insane  person  or  spendthrift  is  the  same  as 
that  given  by  the  guardian  of  a  minor,  except  that 
the  provisions  relating  to  the  education  of  the  ward  are 
omitted.2 

The  condition  of  the  bond  given  by  the  guardian  of 
a  person  without  the  commonwealth  is  the  same  as  is 
required  when  the  ward  lives  within  the  state,  except  that 
the  provisions  respecting  the  inventory,  the  disposal  of 
the  estate  and  effects,  and  the  account  to  be  rendered,  are 
confined  to  such  estate  and  effects  as  come  to  his  hands  in 
this  state ;  and  the  provisions  respecting  the  custody  of 
the  ward  are  not  applicable,  unless  he  comes  to  reside 
within  this  state.^ 

Upon  the  approval  of  his  bond  by  the  judge  of  the  pro- 
bate court,  the  guardian  receives  his  letter  of  guardian- 
ship, and  has  full  authority  to  proceed  in  the  discharge 
of  his  trust. 

Every  non-resident  guardian  appointed  by  a  probate 
court  or  the  supreme  judicial  court  shall  appoint,  in  writ- 
ing, an  agent  residing  in  the  commonwealth  upon  whom 
service  of  legal  process  can  be  made.  If  such  agent  dies 
or  removes  from  the  commonwealth,  another  agent  must 
be  appointed.     Such  non-resident  guardian  shall   not   be 

1  R.  L.  c.  149,  §  5.  2  R.  L.  c.  145,  §  10.  «  Ibid.  §  18. 


APPOINTMENT   OF   GUARDIANS.  143 

entitled  to  receive  his  letters  of  appointment  until  he  has 
complied  with  the  above  requirement,^ 

CONSERVATORS  OP  THE  PROPERTY  OF  AGED  PERSONS. 

If  a  person  by  reason  of  advanced  age  or  mental  weak- 
ness is  unable  properly  to  care  for  his  property,  the  probate 
court  of  the  county  in  which  he  resides  may,  upon  his 
petition  or  upon  the  petition  of  one  or  more  of  his  friends, 
appoint  a  conservator  of  his  property.  Upon  the  filing 
of  such  petition,  the  court  shall  appoint  a  time  and  place 
for  a  hearing,  and  shall  cause  at  least  fourteen  days' 
notice  thereof  to  be  given  to  the  person  for  whom  a  con- 
servator is  to  be  appointed,  if  he  is  not  the  petitioner. 
If  at  the  hearing  it  appear  that  such  person  is  incapable 
of  properly  caring  for  his  property,  a  conservator  shall 
be  appointed  who  shall  have  the  charge  and  management 
of  such  property  subject  to  the  direction  of  the  court. 
Such  conservator  may  be  discharged  by  the  probate  court 
upon  the  application  of  the  ward,  or  otherwise,  when  it 
appears  that  the  conservatorship  is  no  longer  necessary. 

Such  conservator  shall  give  such  bond  as  is  required  of 
guardians  of  insane  persons,  and  all  provisions  of  law 
relative  to  the  management,  sale,  or  mortgage  of  the 
property  of  insane  persons  shall  apply  to  such  conservator. 
Non-resident  conservators  must  appoint  a  resident  agent 
in  the  same  manner  as  required  of  non-resident  executors 
and  administrators.^ 

1  R.  L.  c.  146,  §  42,  and  R.  L.  c.  139,  §§  8,  9,  10.  A  ward  is  not 
liable  for  repairs  put  upon  his  dwelling-house  by  a  person  employed 
by  the  guardian  to  make  them,  even  after  the  death  of  the  guardian, 
although  the  repairs  were  necessary.  Wallis  r.  Bardwell,  126  Mass. 
366.  A  spendthrift  under  guardianship  cannot  pass  title  to  a  promis- 
sory note  by  indorsement.     Lynch  v.  Dodge,  130  Mass.  458. 

2  R.  L.  c.  145,  §§  40-42. 


CHAPTER   TIL 

APPOINTMENT   OF   TRUSTEES.— TRUSTS. 
IN   WHAT   CASES.  TRUSTEES   MAY   BE   APPOINTED. 

If  a  testator  has  omitted  in  his  will  to  appoint  a  trustee 
in  this  commonwealth,  and  if  such  appointment  is  neces- 
sary to  carry  into  effect  the  provisions  of  the  will,  the 
probate  court  may,  after  notice  to  all  persons  interested, 
appoint  a  trustee,  who  shall  have  the  same  powers,  rights, 
and  duties,  and  the  same  title  to  the  estate,  as  if  he  had 
been  originally  appointed  by  the  testator.^ 

1  R.  L.  c.  147,  §  4;  Hooper  v.  Bradbury,  133  Mass.  303. 

Trustees  to  whom  real  estate  is  devised  ■v\  ith  a  power  of  sale,  and 
who  are  exempt  from  giving  bond,  may  legally  execute  the  power 
without  an  appointment  from  the  probate  court.  Parker  v.  Sears,  117 
Mass.  513. 

Certain  domestic  trust  companies  may  be  appointed  trustees  under 
any  will  or  instrument  creating  a  trust  for  the  care  and  management 
of  property.     R.  L.  c  116,  §  18. 

A  corporation  may  receive  and  hold  property  as  trustee  if  the 
trust  is  consistent  with  the  purposes  of  the  original  institution  of  the 
corporation.  Sutton  Parish  v.  Cole,  3  Pick.  240;  Hill  v.  Boston,  122 
Mass.  349. 

The  appointment  of  a  trustee  under  a  will  by  the  probate  court 
cannot  be  impeached  for  an  irregularity  in  the  proceedings  not  affect- 
ing the  jurisdiction  of  that  court  in  a  suit  in  equity,  but  is  to  be  re- 
garded as  a  valid  appointment.     McKim  v.  Doane,  137  Mass.  195. 

A  decree  appointing  a  trustee  under  a  will  naade  in  a  county  other 
than  that  in  which  the  will  is  admitted  to  probate,  but  in  which  part 
of  the  trust  property  is  situated,  is  not  void,  and  cannot  be  collaterally 
impeached.    Bradstreet  v.  Butterfield,  129  Mass.  339.    It  is  immate- 


APPOINTMENT   OF   TRUSTEES.  145 

And  when  a  trustee  under  a  written  instrument  declines, 
resigns,  dies,  or  is  removed  before  the  objects  of  the  trust 
are  accomplished,  and  such  instrument  makes  no  adequate 
provision  for  supplying  the  vacancy,  the  supreme  judicial 
court,  the  superior  court,  or  the  probate  court,  after  notice 
to  all  persons  interested,  shall  appoint  a  new  trustee  to  act 
alone  or  jointly  with  the  others,  as  the  case  may  be.^ 
Such  new  trustee,  upon  giving  the  bond  required,  has  the 
same  powers,  rights,  and  duties,  whether  as  a  sole  or  joint 
trustee,  as  if  he  had  been  originally  appointed  ;  and  the 
trust  estate  vests  in  him  in  like  manner  as  it  had  or  would 
have  vested  in  the  trustee  in  whose  place  he  is  substituted ; 

# 

and  the  court  may  order  such  conveyances  to  be  made  by 
the  former  trustee  or  his  representatives,  or  by  the  other 
remaining  trustee,  as  may  be  proper  or  convenient  to  vest 
in  him,  either  alone  or  jointly  with  the  others,  the  trust 
estate.^ 


rial  that  the  petition  for  the  appointment  of  the  trustee  presented  to 
and  acted  on  by  the  court  of  one  county  was  in  form  addressed  to  the 
court  of  another  county.     Bradstreet  th  Butterfield,  129  Mass.  339. 

^  H.  devised  property  to  H.  and  R.,  their  heirs  and  assigns,  and 
the  survivor  of  them,  upon  certain  trusts.  R.  died  before  the  trusts 
were  fully  executed.  Held,  that  it  was  the  duty  of  the  probate  court, 
under  Rev.  Stats,  c.  69,  §  8  (R.  L.  c.  147,  §  5),  the  will  being  silent  on 
the  subject,  to  appoint  a  co-trustee  to  act  with  the  survivor.  Dixon 
V.  Homer,  12  Cush.  41 ;  Attorney-General  v.  Barbour,  121  Mass.  .574; 
Schouler,  Petitioner,  134  Mass.  426;  Carruth  v.  Carruth,  148  Mass. 
434 ;  Dexter  v.  Cotting,  149  Mass.  95. 

2  R.  L.  c.  147,  §  6;   Parker  v.   Converse,  5  Gray,  336;   Dixon  v. 

Homer,  12  Cush.  41;  Nugent  v.  Cloon,  117  Mass.  219;  Bradford  v. 

Monks,  132  Mass.  40.5;  Wemyss  v.  White,  159  Mass.  484.     A  trustee 

cannot   withhold  the  income  of  a  trust  fund  from   the  beneficiary's 

assignee,  in  order  to  repay  to  himself,  by  way  of  set-oif,  money  lent  by 

him  to  the  beneficiary  prior  to  his  appointment  as  trustee.     Abbott  v. 

Foote,  146  Mass.  333. 

If  one  trustee  is  appointed  in  place  of  two  who  have  been  removed, 

10 


145       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  a  tenant  for  life  or  for  years  and  the  remainderman 
or  reversioner  sustain  damages  in  their  property  by  the 
laying  out,  relocation,  alteration,  or  discontinuance  of,  or 
by  specific  repairs  on,  a  highway,  or  if  the  property  is 
encumbered  by  a  contingent  remainder,  executory  devise, 
or  power  of  appointment,  entire  damages,  or  an  entire 
amount  as  indemnity,  sliall  be  assessed  without  apportion- 
ment thereof  ;  and  shall  be  paid  to,  or  be  recoverable  by, 
any  person  whom  the  parties  may  appoint,  and  be  held  in 
trust  by  him  for  their  benefit  according  to  their  respective 
interests.  The  trustee  shall,  from  the  income  thereof,  pay 
to  the  reversioner  or  remainderman  the  value  of  any 
annual  rent  or  other  payment  which  would,  but  for  such 
damages,  have  been  payable  by  the  tenant,  and  the  balance 
to  the  tenant  during  the  period  for  which  his  estate  was 
limited,  and,  upon  its  termination,  he  shall  pay  the  princi- 
pal to  the  reversioner  or  remainderman. 

the  trust  property  is  vested  in  him,  and  he  has  the  right  to  prosecute 
suits  to  recover  the  same.  Hammond  ?'.  Granger,  128  Mass.  272  ; 
Greene  v.  Borland,  4  Met.  830. 

When  a  will  creates  two  distinct  trusts,  and  appoints  but  one  trus- 
tee for  their  performance,  the  trustee  may,  if  good  reasons  exist  for 
doing  so,  accept  one  and  refuse  the  other,  and  the  probate  court  has 
power  to  appoint  a  new  trustee  to  execute  the  trust  which  he  has 
declined.     Carruth  v.  Carruth,  liS  Mass.  431. 

To  validate  the  appointment  of  a  sole  trustee  to  succeed  co-trustees, 
it  seems  that  the  consent  of  all  the  parties  beneficially  interested  is 
necessary.  Greene  v.  Borland,  4  Met.  380;  Dixon  v.  Homer,  12  Cush. 
41 ;  and  see  Mass.  Gen.  Hospital  v.  Amory,  12  Pick.  445. 

An  executor  may  be  a  trustee  by  the  express  terms  of  the  will  or 
by  implication.  Dorr  v.  Wainwright,  13  Pick.  328;  Miller  v.  Cong- 
don,  14  Gray,  114;  Ricketson  v.  Merrill,  148  Mass.  76;  Jones  v. 
Atchison,  etc.  R.  R.  Co.,  150  Mass.  304. 

A  co-trustee  is  responsible  only  for  his  own  acts,  not  for  any  de- 
faults of  his  fellow  trustees,  in  the  absence  of  fraud.  Stowe  v.  Bowen, 
99  Mass.  194.  A  surviving  trustee  will  be  responsible  for  any  im- 
proper disposition  of   the  trust  property  by  him,  although   in   the 


APPOINTMENT   OF   TRUSTEES.  147 

The  amount  so  to  be  placed  in  trust  shall  include  only  the 
damages  assessed  to  the  whole  property  when  the  value 
thereof  is  ascertained  ;  and  any  damage  special  to  a  separate 
estate  therein,  and  all  interest  or  other  earnings  which 
accrue  between  the  taking  and  the  receipt  by  the  trustee  of 
the  damages  to  the  whole  property,  shall  be  awarded  in  the 
same  proceedings  separately. 

If  a  person  having  an  interest  in  such  property  is,  by 
reason  of  legal  disability,  incapable  of  choosing  a  trustee, 
or  is  unascertained  or  not  in  being,  or  if  the  parties  cannot 
agree  upon  a  choice,  the  probate  court  of  the  county  in 
which  the  property  is  situated  shall,  upon  application  of 
the  county  commissioners  or  of  any  persons  interested  or 
of  any  other  person,  in  behalf  of  such  persons,  whether  in 
being  or  not,  as  may  by  any  possibility  be  or  become 
interested  in  said  property,  appoint  a  trustee,  who  shall 
give  to  the  judge  of  probate  a  bond  with  such  sureties  and 
in  such  sum  as  the  judge  may  order,  conditioned  for  the 
faithful  performance  of  his  duties.^ 

If  it  appears  in  any  proceedings  for  the  recovery  of 
damages  sustained  as  aforesaid  that  an  interest  in  such 
property  is  unrepresented  by  reason  of  a  contingency  or 
other  cause  by  which  the  owner  thereof  is  unknown  or 
cannot  then  be  ascertained,  a  guardian  ad  litem  may  be 
appointed  to  represent  such  interest  by  the  tribunal  in 
which  such  proceedings  are  pending ;  or  the  judge  of 
probate  for  the  county  in  which  such  proceedings  are 
pending  may,  upon  petition  of  any  party  in  interest, 
after  such  notice  as  he  may  order  to  all  persons  who, 
or   whose   issue   unborn,  are   or   may    become   interested 

advantages  of  such  disposition  the  deceased  trustee  shared.     Blake 
V.  Pegram,  109  Mass.  541. 
1  R.  L.  0.  48,  §§  17-19. 


148       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

in  such  appointment,  appoint  a  trustee,  who,  upon  giving 
such  bond  as  the  judge  of  probate  requires,  shall  repre- 
sent such  interest  and  shall  receive,  manage,  and  invest 
any  money  receivable  on  account  thereof,  for  the  bene- 
fit of  the  parties  entitled  thereto,  and  shall  pay  the 
principal  and  interest  thereof  to  such  parties  when  entitled 
thereto.^ 

A  trustee  may  in  like  manner,  and  under  tlie  same  con- 
ditions, be  appointed  in  all  cases  where  damages  are  sus- 
tained by  taking  land  for  public  uses  and  in  which  provision 
is  made  that  damages  shall  be  assessed  in  the  manner  pro- 
vided in  the  laying  out  of  highways.^ 

Likewise,  in  case  of  partition  of  lands  by  sale  or  other- 
wise, if  it  appears  that  an  estate  for  life  or  for  years  in  any 
part  of  the  la,nd  divided  belongs  to  one  person  and  the 
remainder  to  another  person,  the  probate  court  of  the 
county  in  which  the  proceedings  are  pending  may,  on 
petition  of  any  party  intei'ested,  appoint  a  trustee  to  receive, 
hold,  manage,  and  invest  any  distributive  share  of  the  money 
arising  from  the  partition,  to  which  such  persons  may  be 
entitled,^ 

A  surviving  husband  or  a  widow  who  waives  the  provision 
made  for  him  or  her  in  the  will  of  the  deceased  wife  or 
husband  thereby  becomes  entitled  to  such  portion  of  the 
estate  of  the  deceased  person  as  he  or  she  would  have  been 
entitled  to  if  the  deceased  had  died  intestate  ;  provided, 
however,  that  if  the  share  of  the  real  and  personal  estate 
to  which  he  or  she  thus  becomes  entitled  exceeds  ten  thou- 
sand dollars  in  value,  he  or  she  shall  receive  in  addition  to 
that  amount  only  the  income  of  the  excess  of  said  share 
above  the  sum  of  ten  thousand  dollars  during  his  or  her 
natural  life,  the  personal  property  to  be  held  in  trust  and 

1  K.  L.  c.  48,  §  25.  3  Ibid.  §  108.  «  R.  L.  c.  184,  §  49. 


APPOINTMENT   OF   TRUSTEES.  149 

the  real  property  vested  in  him  or  her  for  life  ;  and  except 
that,  if  the  deceased  leaves  no  kindred,  the  surviving  hus- 
band or  widow  upon  such  waiver  shall  take  the  interest  he 
or  she  would  have  taken  if  the  deceased  had  died  leaving 
kindred  but  no  issue.  In  such  case,  upon  application  by 
any  one  interested,  the  probate  court  may  appoint  one  or 
more  trustees  to  receive,  hold,  and  manage  any  personal 
estate  to  the  income  of  which  the  surviving  husband  or 
widow  is  so  entitled.^ 

If  land  is  subject  to  a  contingent  remainder,  executory 
devise,  or  power  of  appointment,  the  probate  court  for  the 
county  in  which  such  land  is  situated  may,  upon  the  peti- 
tion of  any  person  who  has  an  estate  in  possession,  in  such 
land,  and  after  notice  and  other  proceedings  as  provided  in 
section  30  of  chapter  127  of  the  Revised  Laws,  appoint  one 
or  more  trustees,  and  authorize  him  or  them  to  sell  and  con- 
vey such  land  or  any  part  thereof  in  fee-simple,  or  to 
mortgage  the  same,  if  such  sale  and  conveyance  appear 
to  the  court  to  be  necessary  or  expedient ;  and  such  con- 
veyance or  mortgage  shall  be  valid  and  binding  upon  all 
persons. 

If  land  is  subject  to  a  vested  remainder  or  reversion,  the 
probate  court  in  which  such  land  is  situated  may,  upon  the 
petition  of  any  person  who  has  either  an  estate  in  posses- 
sion or  the  remainder  or  reversion  in  such  land,  and  after 
tlie  like  notice  and  proceedings,  appoint  one  or  more  trus- 
tees and  authorize  him  or  them  to  sell  and  convey  such 
land,  or  any  part  thereof,  in  fee-simple,  if  such  sale  and 
conveyance  appear  to  the  court  to  be  necessary  or  expe- 

1  R.  L.  c.  135,  §§  16,  17;  Borden  v.  Jenks,  140  Mass.  563;  Staigg 
V.  Atkinson,  144  Mass.  570;  Dexter  v.  Codman,  148  Mass.  422.  Such 
tru.<?tees  are  subject  to  the  provisions  of  chapter  147  of  the  Revised  Laws, 
so  far  as  the  same  are  applicable. 


150       PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

dient ;  and  such  conveyance  shall  be  valid  and  binding 
upon  all  persons. 

Notice  of  the  petition  in  any  of  the  cases  referred  to  in 
either  of  the  two  preceding  paragraphs  shall  be  given,  in 
such  manner  as  the  court  may  order,  to  all  persons  who 
are  or  who  may  become  interested  in  the  land  to  which 
the  petition  relates,  and  to  all  persons  whose  issue,  not  in 
being,  may  become  interested  therein  ;  and  the  court  shall 
of  its  own  motion  in  every  case  appoint  a  suitable  person, 
to  appear  and  act  therein  as  the  next  friend  of  all  minors, 
persons  not  ascertained,  and  persons  not  in  being,  who  are 
or  may  become  interested  in  such  land.^  A  decree,  judg- 
ment, or  an  order  made  in  the  proceedings  upon  the 
petition,  after  such  appointment,  is  conclusive  upon  all 
persons  for  whom  such  next  friend  was  appointed.^ 

Such  trustee  "  shall  give  bond  in  such  form  and  for  such 
an  amount  as  the  court  appointing  him  may  order,  and  he 
shall  receive  and  hold,  invest,  or  apply  the  proceeds  of  any 
sale  or  mortgage  made  by  him,  for  the  benefit  of  the  persons 
who  would  have  been  entitled  to  the  real  estate  if  such  sale 
or  mortgage  liad  not  been  made,  and  the  probate  court  of 
any  county  in  which  any  part  of  such  land  is  situated  shall 
have  jurisdiction  of  all  matters  thereafter  arising  in  relation 
to  such  trust."  ^ 

When  it  appears  that  wood  or  timber,  standing  on  land 
the  use  and  improvement  of  which  belongs,  for  life  or  other- 
wise, to  a  person  other  than  the  owner  of  the  fee  therein, 
has  ceased  to  improve  by  growth,  or  ought  for  any  cause 
to  be  cut,  the  supreme  judicial  court,  or  the  probate  court 
for  the  county  in  which  the  land  lies,  may  appoint  a  trustee 

1  R.  L.  c.  127,  §§  28,  29,  30 ;  Pratt  v.  Bates,  161  Mass.  315. 

2  R.  L.  c.  127,  §  30,  and  c.  145,  §  23. 
8  R.  L.  c.  127,  §  31. 


APPOINTMENT   OF  TRUSTEES.  151 

to  sell  and  convey  the  wood  or  timber,  to  be  cut  and 
carried  away  within  a  time  to  be  limited  in  the  order  of  sale, 
and  to  hold  and  invest  the  proceeds  thereof,  after  paying 
therefrom  the  expenses  of  such  sale,  and  to  pay  over  the 
income,  above  the  taxes  and  other  expenses  of  the  trust, 
to  the  person  entitled  to  such  use  and  improvement  while 
his  right  thereto  continues,  and  thereafter  to  pay  the  princi- 
pal sum  to  the  owner  of  such  land.  Such  sale,  if  authorized 
by  a  probate  court,  shall  be  made  in  the  manner  pro- 
vided by  law  for  the  sale  of  real  property  by  guardians  ; 
and  if  such  sale  is  authorized  by  the  supreme  judicial  court, 
the  trustee  shall  give  to  such  person  as  the  court  shall 
designate  a  bond  for  the  use  and  benefit  of  the  persons 
interested  in  the  proceeds  of  the  sale,  with  condition  for 
the  faithful  discharge  of  the  trust;  and  the  court  may 
remove  the  trustee  and  appoint  another  in  his  stead.^ 

If  a  trustee  who  derives  his  appointment  or  authority 
from  a  court  which  has  no  jurisdiction  within  this  common- 
wealth, holds  land  in  this  commonwealth  in  trust  for  per- 
sons resident  here,  he  shall,  upon  petition  to  the  probate 
court  in  the  county  in  which  the  land  lies,  and  after  notice, 
be  required  to  take  out  letters  of  trust  from  said  court ; 
and  upon  his  neglect  or  refusal  so  to  do,  the  court  shall 
declare  such  trust  vacant,  and  shall  appoint  a  new  trustee, 
in  whom  the  trust  estate  shall  vest  in  like  manner  as  if  he 
had  been  originally  appointed  or  authorized  by  said  court. 

"  The  notice  to  the  trustee  required  by  the  preceding 
section  may  be  given  by  serving  on  him  a  copy  of  the 
petition,  and  of  the  citation  of  the  court  issued  thereon, 
fourteen  days  at  least  before  the  time  fixed  for  the  return 
of  such  citation,  or  by  such  other  notice  as  the  court  may 
order."  ^ 

1  R.  L.  c.  134,  §  11.  a  R.  L.  c.  147,  §§  9,  10. 


152       PROCEEDINGS  IN  THE  PKOBATE  COUKTS. 

No  person  succeeding  to  a  trust  as  executor  or  admin- 
istrator of  a  former  trustee  is  required  to  accept  such 
trust.i 

Any  cemetery  corporation  may  take  and  hold  funds  upon 
trust  to  apply  the  income  thereof  to  the  improvement  or 
embellishment  of  the  cemetery,  or  to  the  care,  preservation, 
or  embellishment  of  any  lot,  or  its  appurtenances.^ 

Any  city  or  town  is  authorized,  to  receive,  hold,  and 
apply  any  funds,  moneys,  or  securities  which  may  be 
deposited  with  the  treasurer  of  such  city  or  town  for  the 
preservation,  care,  improvement,  or  embellishing  of  any 
public  or  private  burial  place  situated  therein,  or  of  burial 
lots  located  in  the  same ;  and  may  pass  such  ordinances  or 
by-laws,  not  inconsistent  with  law,  as  may  be  necessary  for 
said  purpose,  and  may  allow  interest  on  such  funds  at  a 
rate  not  exceeding  six  per  cent  a  year.^ 

Any  towm  or  city  shall  also  be  authorized  to  take  and 
hold  in  trust  or  otherwise  any  devise,  grant,  gift,  or  be- 
quest that  may  be  made  for  the  purpose  of  laying  out  or 
improving  any  park  or  parks  therein.* 

Churches  or  religious  societies  may  appoint  trustees,  not 
exceeding  five  in  number,  who  shall  with  their  successors 
be  a  body  corporate,  for  the  purposes  mentioned  in  section 
one  of  chapter  thirty-seven  of  the  Revised  Laws,  and  shall 
be  subject  to  all  of  the  provisions  of  said  chapter  applicable 
thereto. 

Incorporated  and  unincorporated  religious  societies  and 

1  R.  L.  c.  147,  §  13. 

A  beneficiary  may  authorize  his  trustee  to  do  what  otherwise  would 
be  a  breach  of  trust,  or  release  and  agree  to  hold  him  harmless  for 
such  an  act  after  it  is  done.     Pope  v.  Farns worth,  146  Mass.  339. 

2  R.  L.  c.  78,  §  5;  Green  v.  Hogan,  153  Mass.  462. 

«  R.  L.  c.  78,  §  18;  Bartlett,  Petitioner,  163  Mass.  513. 
*  R.  L.  0.  28,  §  9. 


APPOINTMENT  OF  TRUSTEES.  153 

churches  may  appoint  trustees,  not  exceeding  five,  to  hold 
and  manage  trust  funds  for  their  benefit,  who  shall  hold 
their  offices  for  three  years  and  until  others  are  appointed 
in  their  stead.  At  or  before  the  time  of  the  first  appoint- 
ment of  such  trustees,  the  society  may  establish  regulations 
for  their  government  which  shall  not  be  subject  to  altera- 
tion or  amendment  except  by  consent  of  all  of  the  trustees 
in  office  and  by  a  two-thirds  vote  of  the  church  or  society 
interested  therein.  Any  funds  held  by  the  bodies  cor- 
porate mentioned  in  the  first  and  second  sections  of  said 
chapter  thirty-seven  may  be  transferred  to  said  trustees 
to  be  held  in  trust  in  like  manner  by  them.^ 

Certain  trust  companies  incorporated  under  the  authority 
of  this  commonwealth  may  be  appointed  trustee  under  any 
will  or  instrument  creating  a  trust  for  the  care  and  man- 
agement of  property,  under  the  same  circumstances  and  in 
the  same  manner,  and  subject  to  the  same  control  by  the 
court  having  jurisdiction  of  the  same,  as  in  the  case  of 
a  legally  qualified  person.^ 

FORMAL   PROCEEDINGS. 

A  trustee  appointed  by  will  should  petition  the  probate 
court  for  a  confirmation  of  his  appointment.  The  petition 
should  state  in  general  terms  the  nature  of  the  trust,  the 
manner  in  which  it  was  created,  and  the  willingness  of 
the  petitioner  to  accept  the  trust  and  give  the  bond 
required. 

If  the  appointment  is  necessary  in  consequence  of  a 
vacancy  in  the  office  of  trustee,  the  petition  should  set 
forth  the  fact,  and  state  in  what  way  the  vacancy  was 
occasioned,  whether  by   the  omission   of  the   testator  to 

1  R.  L.  c.  37,  §§  4,  3.  2  R.  L,  g.  116,  §  18. 


154       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

make  an  appointment,  or  by  the  resignation  or  death  of 
a  former  trustee,  or  otherwise. 

Any  person  interested  in  a  trust  estate  may  petition 
for  the  appointment  of  a  trustee.  A  citation  to  parties 
interested  will  be  ordered  before  an  appointment  is  made, 
unless  their  written  assent  is  given  to  the  prayer  of  the 
petition. 1 

Every  non-resident  trustee,  appointed  by  a  probate  court 
or  the  supreme  judicial  court,  shall  appoint,  in  writing, 
an  agent  residing  in  the  commonwealth,  upon  whom 
service  of  legal  process  can  be  made.  If  such  agent  dies 
or  removes  from  the  commonwealth,  another  agent  must 
be  appointed.  Such  non-resident  trustee  shall  not  be 
entitled  to  receive  his  letters  of  appointment  until  he 
has  complied  with  the  above  requirement.^ 

trustees'    BONDS. 

Every  trustee  under  a  will,  unless  exempted,  is  required, 
before  entering  upon  the  duties  of  his  trust,  to  give  bond, 
with  sufficient  surety  or  sureties,  to  the  judge  of  the 
probate  court  for  the  county  in  which  the  will  is  proved,^ 

^  A  testator  appointed  three  trustees,  and  provided  that,  if  a  vacancy 
occurred  in  the  number  of  trustees,  the  surviving  or  acting  trustees 
should  nominate  a  suitable  person  to  be  appointed  by  the  judge  of 
probate  to  fill  the  vacancy.  A  new  trustee  was  so  appointed  without 
notice.  Held,  that  the  trustee  was  duly  appointed,  as  in  making 
the  appointment  the  judge  did  not  act  officially,  but  under  the  will. 
Shaw  V.  Paine,  12  Allen,  293;  Webster  Bank  v.  Eldridge,  115  Mass. 
424. 

The  regularity  of  the  proceedings  of  the  probate  court  as  to  notice 
in  appointing  a  trustee  cannot  be  questioned  by  the  trustee  or  his 
sureties.     Bassett  v.  Crafts,  129  Mass.  513. 

2  R.  L.  c.  147,  §  14. 

*  BuUard  v.  Attorney-General,  153  Mass.  249. 


APPOINTMENT   OF   TRUSTEES.  155 

in  such  sum  as  the  court  shall  order,  witli  condition  to 
make  and  return  to  the  probate  court,  at  such  time  as 
it  may  order,  a  true  inventory  of  all  the  real  and  personal 
estate  belonging  to  him  as  trustee,  which  at  the  time  of 
making  such  inventory  shall  have  come  to  his  possession 
or  knowledge;  to  manage  and  dispose  of  all  such  estate, 
and  faithfully  to  discharge  his  trust  in  relation  thereto 
according  to  law  and  to  the  will  of  the  testator  ;  to  render 
upon  oath  at  least  once  a  year  nntil  his  trust  is  fulfilled, 
unless  he  is  excused  therefrom  in  any  year  by  the  court, 
a  true  account  of  the  property  in  his  hands  and  of  the 
management  and  disposition  thereof,  and  also  to  render 
such  account  at  such  other  times  as  said  court  may  order ; 
at  the  expiration  of  his  trust  to  settle  his  account  in  the 
probate  court,  and  to  pay  over  and  deliver  all  the  estate 
remaining  in  his  hands,  or  due  from  him  on  such  settle- 
ment, to  the  person  or  persons  entitled  thereto.^ 

Every  trustee  appointed  by  a  probate  court  is  required 
to  give  a  bond  similar  to  that  given  by  trustees  under 
wills.  The  bond  given  by  a  trustee  under  a  deed  should 
be  framed  and  conditioned  in  conformity  to  the  terms 
of  the  deed. 

Every  trustee  who  neglects  to  give  bond  is  considered  to 
liave  declined  or  resigned  the  trust.  If  an  executor  of 
a  will,  who  is  also  named  therein  as  trustee,  neglects 
to  give  bond  as  trustee,  another  person  may  be  appointed 
to  the  trust. 2 

The  statute  provisions  requiring  trustees  under  a  will 
to  give  bond  have  been  held  to  be  confined  to  private 
trusts  of  limited  duration,  and  not  to  extend  to  a  public 

1  R.  L.  c.  149,  §  1.  Collins  v.  Collins,  140  Mass.  507;  BuUard 
V.  Attorney-General,  supra. 

2  Daggett  V.  White,  128  Mass.  398. 


156       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

and  permanent  charity,  the  beneficiaries  of  which  are 
indefinite,  and  a  perpetual  succession  of  trustees  provided 
for  in  the  will.  Trustees  for  charitable  trusts  need  not 
give  bonds. ^ 

A  trustee  under  a  will  is  exempt  from  giving  a  surety 
or  sureties  on  his  bond  when  the  testator  has  ordered 
or  requested  such  exemption,  or  that  no  bond  should  be 
required,  and  when  all  the  persons  beneficially  interested^ 
in  the  trust,  who  are  of  full  age  and  legal  capacity  other 
than  creditors,  request  such  exemption,  but  not  until 
the  guardian  of  any  minor  interested  therein,  and  such 
other  persons  as  the  court  shall  direct,  have  been  notified, 
and  have  had  opportunity  to  show  cause  against  the  same.^ 
But  the  trustee  is  required  to  give  his  personal  bond,  and 
the  court,  at  any  time  when  it  deems  it  proper,  may 
require  him  to  give  a  bond  with  sureties.  If  the  trustee 
was  not  required  to  give  bond  by  the  laws  in  force  at 
the  time  of  his  appointment,  the  court  may  at  any  time, 
by  a  special  order,  require  him  to  give  a  bond  with  sure- 
ties. Any  person  interested  in  a  trust  estate  may  apply 
to  the  court  by  petition  for  an  order  requiring  the  trustee 
to  furnish  sureties ;  and  if  the  trustee  fails  to  comply  with 
the  order  of  the  court,  he  will  be  removed,  and  a  new 
trustee  appointed  in  his  stead.* 

1  Lowell,  Appellant,  22  Pick.  215;  Drury  v.  Natick,  10  Allen,  169; 
White  V.  Ditsoii,  140  Mass.  354. 

■^  This  has  beeu  construed  to  mean  such  interested  persons  only  as 
are  in  being  and  have  a  present  vested  interest  in  the  estate,  and  not 
such  as  are  not  in  being  nor  such  as  may  become  interested  in  the 
futui-e.     Dexter  v.  Cotting,  149  Mass.  94. 

3  R.  L.  c.  149,  §  4. 

*  Ibid.  §§  4,  6,  7;  White  v.  Ditson,  140  Mass.  354;  Dexter  v. 
Cotting,  149  Mass.  94. 


APPOINTMENT   OF   TRUSTEES.  157 

TERMINATION   OF   CERTAIN   TRUSTS. 

Tlie  statute  provides  that  when  it  appears,  upon  petition 
or  otherwise,  to  the  probate  court  of  the  county  where 
letters  testamentary  or  of  administration  have  been  granted 
on  the  estate  of  a  person  deceased,  that  such  person  in  his 
lifetime  made  a  conveyance  of  his  real  estate  in  this  state 
in  trust  for  the  benefit  of  liis  creditors,  and  the  trustee  cer- 
tifies that  all  the  debts  secured  thereby  and  due  to  persons 
other  than  himself  have  been  paid,  or  otherwise  adjusted 
to  the  satisfaction  of  the  creditors  so  far  as  known,  and 
that  he  desires  to  settle  his  trust  account  and  terminate 
the  trust,  the  court  shall  appoint  a  time  and  place  for 
hearing  all  persons  interested  therein ;  notice  of  which 
shall  be  given  by  advertisement  in  some  newspaper  printed 
in  the  county  or  otherwise  as  the  court  may  order.  Upon 
such  hearing  the  court  may  terminate  the  trust,  so  far 
as  the  creditors  and  persons  claiming  under  them  are 
concerned,  and  discharge  such  real  estate  therefrom  ;  and 
may  settle  the  trust  account,  and  make  any  further  order  as 
to  the  disposition,  distribution,  or  partition  of  the  remain- 
ing trust  estate,  not  inconsistent  with  the  provisions  of  the 
original  instrument  creating  the  trust.  This  provision 
does  not  apply  to  any  case  where  the  instrument  creating 
the  trust  does  not  bear  date  more  than  six  years  previous 
to  the  time  appointed  for  the  hearing;  nor  can  it  affect 
the  operation  of  the  insolvent  laws.^ 

GENERAL  EQUITY   JURISDICTION. 

The  probate  court  has  jurisdiction  in  equity,  concurrent 
with  the    supreme   judicial   court  and  with   the  superior 

1  R.  L.  c.  147,  §  23. 


158       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

court,  of  all  cases  and  matters  relating  to  the  adminis- 
tration of  estates  of  deceased  persons,  to  wills  or  to  trusts 
created  by  will  or  other  written  instrument.^ 

But  the  probate  court  does  not  have  power  to  authorize 
the  executors  of  a  will  to  arbitrate  or  compromise  con- 
troversies between  persons  claiming  under  a  will  and  those 
claiming  under  the  statutes  regulating  the  descent  and 
distribution  of  intestate  estates.^ 

All  matters  of  trust  of  which  probate  courts  have  jur- 
isdiction, except  those  arising  under  wills,  are  within  the 
jurisdiction  of  the  probate  court  for  any  county  in  which 
any  of  the  parties  interested  in  the  trust  reside,  or  in 
which  any  of  the  land  held  in  trust  is  situated  ;  and  such 
jurisdiction,  when  once  assumed,  excludes  the  probate 
court  of  any  other  county  from  taking  jurisdiction  of  any 
matter  subsequently  arising  in  relation  to  the  same  trust.^ 

1  R.  L.  c.  162,  §  5;  Swasey  v.  Jaques,  14i  Mass.  135;  Welch  o. 
Adams,  152  Mass.  81 ;  Healy  v.  Reed,  153  Mass.  197;  Green  v.  Hogan, 
153  Mass.  465 ;  Bennett  v.  Kimball,  175  Mass.  199 ;  Green  v.  Gaskill, 
ibid.  265. 

2  Abbott  V.  Gaskins,  181  Mass. (63  N.  E.  Rep.  933);  see  also 

St.  1902,  c.  538. 

8  R.  L.  c.  162,  §  7.  Upon  a  petition  for  the  appointment  of  a 
trustee  of  a  fund,  it  cannot  be  said  that,  necessarily  and  as  matter 
of  law,  he  is  incompetent  because  he  is  a  surety  upon  a  bond  of  the 
cestui  que  trust,  given  by  her  as  executrix  of  her  husband,  the  former 
trustee,  against  whose  estate,  which  far  exceeds  the  trust  fund  in 
amount,  and  of  which  she  is  sole  legatee,  a  claim  appearing  to  be 
groundless  is  made  by  those  ultimately  entitled  to  the  fund.  Gaskill 
V.  Green,  152  Mass.  256. 


CHAPTER  VIII. 

REMOVAL  AND  RESIGNATION  OF  EXECUTORS  AND 
OTHERS. 

If  an  executor,  administrator,  guardian,  or  trustee,  who 
may  be  required  by  the  probate  court  to  give  a  new  bond, 
does  not  comply  with  the  order  within  the  time  fixed  by 
the  court,  he  will  be  removed,  and  some  other  person 
appointed  in  his  stead ;  ^  and  if  he  become  insane,  or 
otherwise  incapable  of  discharging  his  trust,  or  is  unsuit- 
able therefor,  he  may  be  removed,  notice  having  first  been 
given  to  him  and  to  all  parties  interested.''^  If  an  adminis- 
trator on  his  appointment  fails  to  give  a  bond  for  the 
faithful  performance  of  his  duties  when  required,  he  will 
be  considered  as  having  declined  the  trust. ^ 

An  executor  or  other  officer  appointed  by  the  probate 
court  may  be  incapacitated  by  physical  debility,  want  of 
memory,  or  any  infirmity  which  prevents  the  efficient  per- 
formance of  his  trust ;  and  he  may  be  evidently  unsuit- 
able because  of  his  personal  relations  to  the  estate,  eitlier 
by  reason  of  his  being  indebted  to  it,  or  of  the  interest 
he  has  under  the  will  of  his  testator,  or  his  situation  as 
an  heir  at  law,  or  because  the  prosecution  of  his  individual 
claims  against  the  estate  would  conflict  with  his  official 


1  R.  L.  c.  149,  §§  14-16 ;  Brooks  v.  Whitmore,  142  Mass.  401. 

2  R.  L.  c.  139,  §  11;  c.  145,  §  22;  Gray  v.  Parke,  155  Mass.  438. 
8  R.  L.  c.  149,  §  8. 


IGO       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

duties,  or  for  other  reasons.  The  statute  does  not  enu- 
merate any  causes  of  uiisuitability,  but  gives  the  court  a 
broad  discretion  to  include  the  various  cases  that  may 
arise. ^ 

Tlie  removal  of  executors  and  other  trust  officers  is  made 
upon  the  ground  that  their  continuance  in  the  trust  would 
be  a  detriment  to  the  interests  of  the  heirs  or  other  per- 
sons concerned.  Mere  personal  objections,  or  the  wish  of 
the  parties  in  interest  to  substitute  another  person  whom 
they  prefer,  are  not  sufficient.^  Such  objections  and  pref- 
erences may  properly  be  considered  when  an  original 
appointment  is  to  be  made,  or  a  vacancy  is  to  be  filled, 
but  cannot  affect  the  question  of  removing  an  officer 
who  has  been  duly  appointed  and  whose  bond  has  been 
approved.  The  allegations  of  the  petition  asking  for  the 
removal  must  relate  to  matters  of  substance,  and  the  bur- 
den is  upon  the  petitioner  to  sustain  the  allegations  in  his 
petition.^ 

^  See  Winship  v.  Bass,  12  Mass.  200;  Wildridge  v.  Patterson,  15 
Mass.  148;  Andrews  v.  Tucker,  7  Pick.  250;  Newcomb  v.  Williams, 
9  Met.  538;  Thayer  v  Homer,  11  Met.  104;  Richards  v.  Sweetland, 
6  Cush.  324;  Hussey  v.  Coffin,  1  Allen,  354;  Putney  v.  Fletcher,  148 
Mass.  247;  Gray  v.  Parke,  155  Mass.  433,  and  cases  cited. 

2  Wilson  V.  Wilson,  145  Mass.  490. 

^  A  trustee  under  a  will  was  directed  to  pay  a  certain  sum  to  a 
cestui,  ^' as  by  sickness  or  other  misfortune  he  may  need  the  same; 
any  and  all  payments  to  be  left  entirely  to  the  good  judgment  of  the 
said  trustee;"  any  unexpended  balance  on  the  ces^ui's  death  was  to 
go  to  the  trustee  and  his  heirs.  The  trustee  wrongfully  refused  to  pay  a 
part  of  the  money  to  the  beneficiary  in  time  of  sickness.  It  was  held 
that  he  should  be  directed  to  pay  the  money  to  the  beneficiary,  but 
that  he  need  not  be  removed.  Garvey  v.  Garvey,  150  Mass.  185.  An 
administrator  who  refuses  to  ask  for  a  license  to  sell  realty  pending  a 
petition  to  retain  assets,  is  not  removable.  Cobb  v.  Kempton,  154 
Mass.  266. 

When  a  trustee,  directed  by  a  decree  to  pay  over  a  charitable  fund 
to  a  particular  object,  at  such  times  and  in  such  sums  as  he  in  his 


REMOVAL    AND    RESIGNATION    OF   EXECUTORS,    ETC.      161 

The  fact  that  an  administrator  was  an  unsuitable  person 
at  the  time  of  his  appointment  is  not,  of  itself,  sufficient 
to  cause  his  removal.  On  a  petition  to  remove  him, 
the  question  as  to  the  propriety  of  his  appointment  is 
not  open.  He  cannot  be  removed  except  for  cause  ex- 
isting at  the  time  when  the  petition  for  his  removal  is 
heard.i 

The  relation  existing  between  a  guardian  and  his  ward 
may  require,  for  the  proper  discharge  of  its  obligations, 
other  than  merely  business  qualifications ;  and  the  guardian 
may  be  unsuitable  for  the  care  and  custody  of  the  person 
of  the  ward,  although  no  question  be  made  of  his  integ- 
rity, disinterestedness,  or  general  ability.  The  guardian 
of  a  person  non  compos  mentis  should  be  especially  fitted  for 
his  trust,  and  in  determining  the  question  of  personal  suit- 
ableness, the  peculiar  condition,  interests,  and  necessities 
of  the  ward  must  be  considered.  It  is  not  enough,  in  every 
case,  for  the  guardian  to  supply  the  material  wants  of  his 
ward.  It  is  his  duty  to  make  use  of  every  available  means 
to  promote  the  ward's  welfare,  improvement,  and  happiness. 
With  every  disposition  to  discharge  his  obligations  thor- 
oughly and  conscientiously,  he  may  be,  from  various  causes, 
incapable  of  exercising  the  beneficial  influence  over  his 
ward  that  might  be  exerted  by  another.  The  continuance 
of  the  relation  of  guardian  and  ward  under  such  circum- 
stances might  materially  interfere  with  the  permanent 
improvement  and  general  welfare  of  the  ward,  and  thus 
defeat  the  main  object  of  the  guardianship.  Whenever, 
from  any  cause,  the  guardian  becomes  unable  to  perform 

discretion  may  see  fit,  refuses  to  exercise  such  discretion  because  he 
does  not  approve  of  the  disposal  of  the  fund  as  decreed,  he  may  and 
will  be  removed.     Attorney-General  v.  Garrison,  101  Mass.  223. 
1  Drake  v.  Green,  10  Allen,  124. 

11 


162       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

an  important  and  substantial  part  of  the  duties  of  his  office, 
he  is  liable  to  be  removed  as  "  evidently  unsuitable. "  ^ 

If  an  executor,  administrator,  guardian,  or  trustee,  remov- 
ing from  or  residing  out  of  the  commonwealth,  neglects 
to  appoint  in  writing  an  agent  here  upon  whom  service 
of  legal  process  against  him  can  be  made,  he  may  be 
removed.  2  Nor  will  the  letter  of  appointment  be  issued 
until  an  agent  has  been  appointed.  ^ 

In  case  of  the  marriage  of  a  woman  who  is  an  executrix, 
administratrix,  guardian,  or  trustee,  her  sureties  have  the 
riglit,  upon  petition  to  the  probate  court  in  which  her  bond 
is  filed,  to  be  released  from  any  further  liability  on  the 
bond,  beyond  accounting  for  and  paying  over  the  money 
and  property  already  in  her  hands  by  virtue  of  such  trust; 
and  if  her  sureties  are  so  released,  she  will  be  required  to 
furnish  a  new  bond  to  the  satisfaction  of  the  court,  or  will 
be  discharged  from  the  trust.  * 

When  an  executor  or  administrator  residing  out  of  this 
state,  having  been  duly  cited  by  the  probate  court,  neglects 
to  render  his  accounts  and  settle  the  estate,  he  may  be 
removed.  ^  If  the  executor  or  administrator  neglects  to 
settle  his  accounts  within  six  months  after  the  return  of 
the  insolvent  commissioners,  or  the  final  liquidation  of  the 
demands  of  the  creditors,  or  within  such  further  time  as 
the  court  may  allow,  and  thereby  delays  a  decree  of  distri- 

^  See  Perkins  v.  Finnegan,  105  Mass.  501  ;  Gray  v.  Parke,  155 
Mass.  438. 

2  R.  L.  c.  139,  §§  8,  9,  10 ;  c.  14.5,  §  42  ;  c.  147,  §  14. 

8  R.  L.  c.  139,  §  8-;  c.  145,  §  42  ;  c.  147,  §  14. 

*  R.  L.  c.  149,  §  19. 

6  R.  L.c.  139,  §  11. 

The  -words  "settlement  of  the  estate,"  when  applied  to  the  estates 
of  deceased  persons,  refer  to  the  settlement  of  the  probate  account. 
Allen  V.  Dean,  148  Mass.  594. 


REMOVAL    AND    EESIGNATION    OF   EXECUTORS,   ETC.      163 

bution,  such  neglect  shall  be  unfaithful  administration,  and 
he  may  be  removed.  ^ 

Any  unfaithful  administration  which  will  sustain  an 
action  on  the  bond  of  an  executor  or  other  officer  appointed 
by  the  probate  court,  is  sufficient  cause  for  his  removal.  ^ 

When  tliere  are  two  or  more  executors  of  a  will,  either  of 
them  may  be  removed  for  sufficient  cause ;  and  in  such  case 
the  other  executor  or  executors  will  proceed  in  the  execu- 
tion of  the  trust,  ^ 

A  trustee  may  be  removed  on  the  application  of  the 
parties  beneficially  interested  in  the  trust  estate,  if  it 
appears  that  his  removal  is  essential  to  their  interests,  * 

A  trustee  who  holds  funds  bequeathed  to  a  city  or  town, 
for  any  charitable,  religious,  or  educational  purpose,  may 
be  removed  by  the  probate  court  for  neglect  to  make  the 
annual  exhibit  of  the  condition  of  such  funds  as  required 
by  law,  or  for  incapacity  or  unsuitability.  ^ 

The  person  applying  for  the  removal  of  an  executor  or 
other  officer  should  set  forth  in  his  petition  the  particular 

1  R.  L.  c.  142,  §  26. 

2  It  is  no  cause  for  the  removal  of  an  administrator  that  he  declines 
to  inventory,  or  commence  proceedings  to  recover  for  the  benefit  of  the 
heirs,  certain  real  estate  formerly  belonging  to  the  deceased,  but  which 
had  been  set  off  on  an  execution  against  him  in  his  lifetime  issued  upon 
a  judgment  alleged  by  the  heirs  to  have  been  recovered  by  the  fraud  of 
the  plaintiff.  Richards  v.  Sweetland,  6  Cush.  324  ;  Drake  v.  Green, 
10  Allen,  124  ;  Putney  v.  Fletcher,  148  Mass.  247.  But,  otherwise, 
when  creditors  of  an  insolvent  estate  request  the  administrator  to 
inventory  real  estate  fraudulently  conveyed  by  the  intestate,  offering 
to  indemnify  him,  and  he  refuses.     Andrews  v.  Tucker,  7  Pick.  250, 

8  Winship  v.  Bass,  12  Mass.  199  ;  R.  L  c.  139,  §  11. 

*  R.  L.  c.  147,  §  11;  Billings  v.  Billings,  110  Mass.  225 ;  Spar- 
hawk  V.  Sparhawk,  114  Mass.  3-56;  Scott  v.  Rand,  118  Mass.  215; 
Attorney-General  v.  Barbour,  121  Mass.  568;  Wilson  v,  Wilson,  145 
Mass.  492. 

6  R.  L.  0.  37,  §  U. 


164       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

fact  of  neglect  or  other  maladministration' which  renders 
the  removal  proper.  In  all  cases,  the  person  whose  removal 
is  asked  for  is  entitled  to  notice,  and  to  an  opportunity  to 
show  cause  why  the  removal  should  be  made.  At  the  hear- 
ing, both  the  petitioner  and  the  respondent  may  offer  any 
evidence  pertinent  to  the  issue ;  and  either  party  may 
appeal  from  the  decree  of  the  court  making,  or  refusing  to 
make,  the  removal. 

The  removal  of  a  trustee  who  holds  funds  bequeathed 
to  a  city  or  town  for  a  charitable,  religious,  or  educational 
purpose,  must  be  on  the  petition  of  five  persons.^  In  all 
other  cases  any  person  interested  in  the  trust  estate  may 
petition. 

When  an  executor  or  administrator  is  removed,  or  letters 
of  administration  are  revoked,  all  previous  sales,  whether 
of  real  or  personal  estate,  made  lawfully  by  him,  and  with 
good  faith  on  the  part  of  the  purchaser,  and  all  other  lawful 
acts  done  by  such  executor  or  administrator,  remain  valid 
and  effectual.^ 

Upon  the  request  of  an  executor,  administrator,  guar- 
dian, or  trustee,  the  probate  court  may,  in  its  discretion, 
allow  him   to  resign  his  trust.^     The  executor   or   other 

^  R.  L.  c.  37,  §  14. 

2  R.  L.  c.  139,  §  12. 

»  Ibid.  §  13;  c.  145,  §22;  c.  147,  §  12.  The  supreme  judicial 
court  has  power  under  its  general  equity  jurisdiction  to  allow  a  trus- 
tee to  resign  on  his  own  application.  Bowditch  ii.  Banuelos,  1  Gray, 
220  ;  Attorney-General  v.  Barbour,  121  Mass.  573.  If,  pending  an  ac- 
tion brought  by  the  trustees  of  a  charity,  one  of  the  plaintiff  trustees 
resigns  the  trust,  such  resignation  will  defeat  the  action.  Adams  v. 
Leland,  7  Pick.  62. 

The  abandonment  of  a  trust  by  one  of  two  trustees  who  are  joint 
tenants  does  not  vest  his  title  in  the  remaining  trustee,  without  deed 
or  legal  process.     Webster  v.  Vandeventer,  6  Gray,  428. 

But  where  in  a  conveyance  to  trustees  it  is  provided  that  in  case  of 


KEMOVAL   AND   RESIGNATION    OF   EXECUTORS,   ETC.       165 

officer  applying  for  leave  to  resign  should  present  to  the 
court,  with  his  petition,  a  just  and  true  account  of  his 
administration.  Until  his  accounts  are  settled,  after  such 
notice  to  the  parties  interested  as  the  circumstances  of 
the  case  require,  his  request  will  not  be  allowed. 

If  an  executor,  administrator,  guardian,  or  trustee  who 
has  resigned  his  trust  neglects  or  refuses  to  deliver  to  his 
successor  all  the  property  held  by  him  under  his  trust, 
the  probate  court  may,  upon  the  application  of  such  suc- 
cessor or  of  any  person  beneficially  interested,  order  such 
delivery  to  be  made,  and  has  like  power  and  authority  for 
enforcing  its  order  and  for  punishing  any  contempt  of  such 
order  as  is  vested  in  the  supreme  judicial  court.^ 

If,  after  the  granting  of  letters  of  administration  as 
of  an  intestate  estate,  a  will  of  the  deceased  is  duly  proved 
and  allowed,  the  first  administration  will  be  revoked.^ 

The  guardian  of  an  insane  person  or  spendthrift  may 
be  discharged   by  the  probate   court   on  the    application 

the  death,  resignation,  or  removal  of  one  of  the  trustees,  the  premises 
shall  vest  in  the  survivors,  on  the  resignation  of  one  trustee  it  was  held 
that  the  trust  estate  vested  in  the  surviving  trustees.  Ellis  v.  Boston, 
Hartford  &  Erie  R.  R.  Co.,  107  Mass.  1. 

One  who  undertakes  to  act  as  trustee  of  a  particular  fund  for  an- 
other, from  whom  he  received  it  without  compensation,  with  no  bene- 
ficial interest  in  the  fund,  and  with  no  agreement  to  act  for  any 
specified  length  of  time,  is  entitled  to  be  discharged  whenever  the 
execution  of  the  trust  becomes  inconvenient  to  him.  Bogle  v.  Bogle, 
3  Allen,  158. 

The  removal  of  a  guardian  by  a  decree  of  the  supreme  judicial  court 
terminates  the  guardianship,  and  the  sending  the  case  back  to  the  pro- 
bate court  for  further  proceedings  does  not  qualify  the  terminating 
effect  of  the  removal.  Willwerth  v.  Leonard,  156  Mass.  277.  No 
method  is  provided  in  which,  after  a  guardianship  has  ceased  for  any 
cause,  the  decree  on  which  it  was  based  may  be  annulled  (ibid.). 

1  R.  L.  c.  162,  §  38.     See  Brooks  v.  Tobin,  135  Mass.  69. 

2  R.  L.  c.  137,  §  5. 


166  PROCEEDINGS   IN    THE    PROBATE    COURTS. 

of  the  ward,  or  otherwise,  when  it  appears  that  such 
guardianship  is  no  longer  necessary.^  Such  application 
of  the  ward  may  be  resisted  by  the  guardian ;  and  all 
reasonable  expenses  incurred  by  him  in  good  faith  for 
the  purpose  of  a  proper  inquiry  into  the  condition  of 
the  ward,  will  be  allowed  to  him  in  the  settlement  of 
his  guardianship  account.^ 

The  marriage  of  a  female  under  guardianship  as  a 
minor  deprives  her  guardian  of  all  right  to  her  custody 
and  education,  but  not  of  his  right  to  her  property.^ 

APPEALS   FROM   DECREES   MAKING   REMOVALS. 
[Revised  Laws,  c.  162.] 

"  Sect.  20.  A  decree  of  a  probate  court  removing  an  ex- 
ecutor, administrator,  guardian,  or  trustee,  shall  have  effect, 
notwithstanding  an  appeal  from  such  decree,  until  other- 
wise ordered  by  a  justice  of  the  supreme  court  of  probate, 
and  a  decree  of  a  justice  of  the  supreme  court  of  probate 
upon  appeal  affirming  such  decree,  or  ordering  such 
removal  when  the  same  has  been  refused  by  the  probate 
court,  shall  have  effect,  notwithstanding  an  appeal  there- 
from to  the  full  court,  until  otherwise  ordered  by  the 
full  court.  The  probate  court  may,  in  either  such  case, 
appoint  a  successor  to  the  person  removed,  and  the  person 
removed  shall  thereupon  deliver  all  the  property  held 
by  him  as  such  executor,  administrator,  guardian,  or 
trustee  to  such  successor,  who  shall  proceed  in  the  per- 
formance of  his  duties  in  like  manner  as  if  no  appeal 
had  been  taken  ;  but  if  the  decree  of  removal  is  reversed 
by  the  supreme  judicial  court,  the  powers  of  such  successor 

1  R.  L.  c.  145,  §  11. 

2  Palmer  v.  Palmer,  1  Chandler  (N.  H.),  448. 
»  K.  L.  c.  145,  §  37. 


REMOVAL  AND   RESIGNATION    OF   EXECUTORS,   ETC.        1G7 

shall  thereupon  cease,  and  he  shall  forthwith  deliver  to 
his  predecessor  in  the  trust,  or  to  such  person  as  the 
court  may  order,  all  property  of  the  estate  in  his  hands."  ^ 

"  Sect.  21.  A  decree  of  a  probate  court  made  in  pur- 
suance of  the  provisions  of  the  preceding  section  shall 
have  effect,  notwithstanding  an  appeal  therefrom,  until 
otherwise  determined  by  the  appellate  court." 

"  Sect.  22.  After  an  appeal  has  been  claimed  from  an 
order  or  decree  referred  to  in  the  two  preceding  sec- 
tions, and  before  such  appeal  has  been  finally  determined, 
a  justice  of  the  supreme  court  of  probate  may  suspend 
or  modify  such  order  or  decree  during  the  pendency  of 
such  appeal." 

1  Gray  v.  Parke,  155  Mass.  437. 


CHAPTER  IX. 

INVENTORIES,  AND   THE  COLLECTION  OF  THE  EFFECTS  OF 
DECEASED   PERSONS   AND   WARDS. 

The  bonds  of  executors,  administrators,  guardians,  and 
trustees  contain  a  condition  that  the  party  giving  the  bond 
shall  return  into  the  probate  court  a  true  inventory  of  all 
the  estate  that  shall  come  to  his  possession  or  knowledge.^ 
Exceptions  to  this  rule  are  made  in  favor  of  executors  or 
administrators  with  the  will  annexed  who  are  residuary 
legatees,  who  elect  to  give  a  bond  for  the  payment  of  the 
debts  and  legacies,  and  run  their  own  risk  as  to  the  suffi- 
ciency of  assets ;  ^  and  in  favor  of  a  trustee  appointed  in 

1  An  executor  who  receives  no  assets  and  files  no  inventory  within 
three  mouths  of  his  appointment  commits  a  breach  of  his  bond  by 
failing  to  file  an  inventory  within  a  reasonable  time  after  assets  come 
to  his  hands,  although  the  Pub.  Stats,  c.  132,  §  5  (now  R.  L.  c.  139, 
§  5),  provide  for  one  inventory  only,  and  for  including  assets  there- 
after received  in  the  executor's  account.  Forbes  v.  McHugh,  152 
Mass.  412. 

To  entitle  an  administrator  to  defend  upon  the  ground  of  insuffi- 
ciency of  assets,  there  must  be  an  inventory  filed  and  a  settlement  of 
his  account  in  the  probate  court.     Me  Kim  v.  Haley,  173  Mass.  112. 

An  agreement  which  is  signed  by  the  testator's  heirs  at  law  author- 
izing and  requesting  the  executrix,  who  was  the  testator's  widow,  "  to 
proceed  in  the  administration  of  the  estate  without  taking  or  filing  an 
inventory  thereof,  and  without  rendering  any  account  of  such  admin- 
istration in  probate  court,"  is  revocable,  and,  having  been  revoked, 
does  not  operate  to  release  the  sureties  on  her  bond.  Fuller  v.  Wilbur, 
170  Mass.  506. 

2  R.  L.  c.  149,  §  2.  Colwell  v.  Alger,  5  Gray,  67 ;  Collins  v,  Col- 
lins, 140  Mass.  505 ;  Jenkins  v.  Wood,  144  Mass.  238. 


INVENTORIES,   ETC.  169 

place  of  a  former  trustee  who  has  deceased  or  has  been 
removed,  or  has  resigned,  if  the  court  deems  an  inventory 
unnecessary.^  Every  executor,  except  one  who  gives  bond 
under  tlie  provisions  of  section  two  of  chapter  one  hundred 
and  forty-nine  of  the  Revised  Laws,  and  every  administrator 
is  required  to  return  an  inventory  within  three  months 
after  his  appointment ;  ^  and  every  guardian  and  trustee 
within  such  time  as  the  court  may  direct.^  In  case  an 
inventory  is  not  filed  of  an  estate,  any  part  of  which  is 
subject  to  a  tax  on  collateral  legacies  and  successions,  the 
executor,  administrator,  or  trustee  neglecting  or  refusing 
to  file  such  inventory  is  liable  to  a  penalty  of  not  more  than 
one  thousand  dollars,  to  be  recovered  by  the  treasurer  of 
the  commonwealth  by  appropriate  proceedings  against  such 
executor,  administrator,  or  trustee.* 

1  R.  L.  c.  147,  §  7. 

2  R.  L.  c.  139,  §  5;  Forbes  v.  McHugh,  152  Mass.  413. 

8  R.  L.  c.  149,  §  1,  cl.  7;  Collins  v.  Collins,  140  Mass.  505;  Bul- 
lard  V.  Atty.-Gen.,  153  Mass.  251;  R.  L.  c  149,  §  1,  cl.  6;  M'Kim  v. 
Mann,  141  Mass.  508;  Murray  v.  Wood,  144  Mass.  197.  An  inventory 
of  every  estate,  any  part  of  which  may  be  subject  to  a  tax  on  collateral 
legacies  and  successions,  shall  be  filed  by  the  executor,  administrator, 
or  trustee  within  three  months  from  his  appointment  and  qualifica- 
tion. In  case  such  executor,  administrator,  or  trustee  neglects  or 
refuses  to  file  such  inventory,  he  shall  be  liable  to  a  penalty  of  not 
more  than  one  thousand  dollars.  A  copy  of  such  inventory  shall  be 
sent  by  the  register  of  the  probate  court  in  which  such  inventory  is 
filed  to  the  treasurer  of  the  commonwealth  within  thirty  days  after 
the  same  is  filed.     R.  L.  c.  15,  §§  9,  10. 

«  R.  L.  c.  15,  §  9. 

Assets.  —  An  administrator  can  recover  property  for  which  the 
intestate  could  not  sue.  Wall  v.  Provident  Institution  for  Savings, 
6  Allen,  320. 

The  administrator  of  the  insolvent  estate  of  a  deceased  person  may 
maintain  a  bill  in  equity,  filed  within  two  years  after  giving  bond,  to 
recover  for  the  benefit  of  creditors,  even  if  all  their  claims  are  other- 
wise barred  by  the  special  statute  of  limitations,  property  conveyed 


170       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  inventory  is  equally  an  advantage  to  the  executor, 
or  other  trust  ofiicer,  and  to  the  heirs,  creditors,  or  other 

by  the  intestate  in  his  lifetime  in  fraud  of  them,  which,  when  recov- 
ered, will  constitute  new  assets.     Welsh  v.  Welsh,  105  Mass.  229. 

A  testator  who  gave  a  bond  to  convey  real  estate,  and  took  from 
the  obligee  an  obligation  to  pay  the  purchase-money,  executed  a  deed, 
but  died  before  the  day  of  payment.  The  executor  received  the 
purchase-money  and  delivered  the  deed.  It  was  held  that  the  exec- 
utor was  bound  to  account  for  the  money.  Loring  v.  Cunningham, 
9  Cush.  87. 

Salary  voted  to  a  person  after  his  decease,  and  paid  to  his  executor, 
is  assets  of  the  estate,  to  be  accounted  for  by  the  executor.     Ibid. 

Manure  taken  from  the  barnyard  of  a  homestead  and  piled  upon 
the  land,  is  part  of  the  realty,  and  does  not  go  to  the  administrator  of 
the  owner.     Fay  i\  Muzzey,  13  Gray,  53. 

Debts  due  the  testator  from  the  executor  named  in  the  will,  and 
from  a  firm  of  which  he  is  a  member,  are  to  be  treated  and  accounted 
for  as  assets,  although  he  and  the  firm  were  insolvent  at  the  time 
when  he  accepted  the'  trust      Leland  v.  Felton,  1  Allen,  531. 

A  legacy  in  money,  on  the  death  of  the  legatee,  vests  in  his  per- 
sonal representatives,  and  not  in  his  heirs-at-law.  Osgood  v.  Foster, 
5  Allen,  560. 

Right  of  property  in  a  trade  secret  is  personalty.  Peabody  u. 
Norfolk,  98  Mass.  452. 

A  promissory  note  taken  by  a  deputy-sheriff  in  satisfaction  of  an 
execution,  on  his  death  goes  to  the  creditor,  and  not  to  the  deputy's 
administrator.     Childs  v.  Jordan,  106  Mass.  321. 

The  liability  of  a  surety  on  the  bond  of  an  administratrix,  who  is 
himself  appointed  administrator  de  bonis  non  of  the  estate  on  her 
removal,  constitutes  a  debt  due  from  him  to  the  estate,  and  is  assets 
in  his  hands.     Choate  v.  Thorndike,  138  Mass.  371. 

The  proceeds  of  the  certificate  of  a  member  of  a  beneficiary  asso- 
ciation who  has  insured  his  life  for  his  own  benefit  will  go,  after 
his  death,  to  his  executor  or  administrator.  Harding  v.  Littlehale, 
150  Mass.  100.  But  where  the  certificate  has  been  assigned  to  secure 
payment  of  a  valid  claim  larger  than  the  fund  payable  under  the  cer- 
tificate, the  equitable  right  of  the  assignee  to  the  fund,  upon  the  mem- 
ber's death,  will  prevail  over  the  legal  title  of  the  administrator. 
Brierly  v.  Equitable  Aid  Union,  170  Mass.  218. 

An  action  on  a  certificate  under  seal  of  a  benefit  association  can  be 
brought  only  by  the  administrator  of  the  certificate  holder,  and  not  by 


INVENTORIES,    ETC.  171 

persons  interested  in  the  estate.  It  is  the  basis  upon 
which  he  is  to  make  his  accounts.  It  shows  the  amount 
for  which  he  is  chargeable,  and  limits  his  responsibility, 
unless  there  are  assets  not  appraised  that  come  to  his 
hands.  On  the  other  hand,  the  heirs  or  other  persons 
interested  have,  in  the  record  of  the  inventory,  the  best 
evidence  that  can  be  had  under  the  circumstances  of  the 
value  of  the  estate  in  the  hands  of  the  trustee ;  and  it  fur- 
nishes them  with  essential  evidence  in  case  it  becomes 
necessary  to  institute  proceedings  against  him,  on  account 
of  any  misappropriation  of  the  property  or  other  mal- 
administration. 

The  inventory  should  include  all  the  real  estate,^  and  all 

the  beneficiaries  named  in  the  certificate.  Flynn  v.  Mass.  Benefit 
Association,  152  Mass.  288;  Burns  v.  United  Workmen,  153  INIass.  173; 
Clarke  v.  Schwarzenberg,  162  Mass.  98.  But  see  R.  L.  c.  118,  §  73, 
and  Brown  v.  Greenfield  Life  Association,  172  Mass.  498. 

^  It  is  not  the  duty  of  an  administrator,  at  the  request  and  for  the 
benefit  of  the  fieirs  of  his  intestate,  to  inventory,  or  institute  proceed- 
ings to  recover,  certain  real  estate  which  once  belonged  to  the  intes- 
tate, but  which  has  been  set  off  on  an  execution  issued  against  him  on 
a  judgment  obtained  by  fraud.  Richards  v.  Sweetland,  6  Cush.  324. 
Otherwise,  when  the  proceeds  of  land  fraudulently  conveyed  are 
needed  for  the  payment  of  debts  due  from  the  estate.  Andrews  v. 
Tucker,  7  Pick.  250  ;  Putney  v.  Fletcher,  148  Mass.  248.  If  there  was 
any  specific  personal  property  in  the  hands  of  the  testator  belonging 
to  others,  which  he  held  in  trust  or  otherwise,  it  is  not  assets  in  the 
hands  of  his  executors,  but  is  to  be  held  by  the  executors  as  the  testa- 
tor himself  held  it.  But  if  the  testator  has  money  or  other  property 
in  his  hands  belonging  to  others,  whether  in  trust  or  otherwise,  and 
it  has  no  ear-mark,  and  is  not  distinguishable  from  the  mass  of  his 
own  propeity,  the  party  owning  it  must  come  in  as  a  general  creditor, 
and  it  falls  within  the  description  of  assets  of  the  executor.  Treco- 
thick  V.  Austin,  4  Mason,  29;  Johnson  v.  Ames,  11  Pick.  173;  Little 
V.  Chad  wick,  151  Mass.  Ill,  and  cases  cited.  Whenever  any  of  the 
real  estate  of  a  decedent  shall  so  pass  to  another  person  as  to  become 
subject  to  the  collateral  succession  tax,  the  executor,  administrator,  or 
trustee  of  the  decedent  shall  inform  the  treasurer  of  the  common- 


172       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  goods,  chattels,  rights,  and  credits  belonging  to  the 
estate  appraised.^  All  notes  and  accounts  due  to  the  estate 
should  be  described  in  the  inventory.  The  appraisers  may 
find  it  difficult  to  appraise  a  note  or  account,  except  as  its 
face  indicates  its  value,  and  for  this  reason  many  adminis- 
trators deem  it  unnecessary  to  include  either  notes  or 
accounts  in  their  inventory,  and  consider  it  sufficient  to 
charge  themselves  with  the  proceeds  of  the  debts  collected 
in  their  accounts  of  administration.  This  course,  if  pur- 
sued in  good  faith,  can  work  no  wrong,  but  it  does  not 
fulfil  all  the  purposes  of  the  law  requiring  an  inventory  to 
be  made.  The  administrator,  moreover,  caimot  be  preju- 
diced by  the  mention  of  notes  and  accounts  in  the  inven- 
tory, even  if  they  prove  to  be  worthless  ;  for  if  they  remain 
uncollected  without  his  fault,  a  credit,  corresponding  in 
amount  yith  the  appraised  value  of  the  worthless  debt, 
will  be  allowed  him  in  his  account.^ 

Orders  for  the  Appraisal  of  Estates  are  issued  by  the 
probate  court.  The  appraisers  must  be  three  suitable,  dis- 
interested persons  ;^  but  the  judge  or  register  may  appoint 
only  one  appraiser  if  in  his  opinion  the  nature  of  the  prop- 
erty makes  it  advisable  so  to  do,*  No  clerk  or  other  person 
employed  in  the  office  of  the  probate  court  can  be  an  ap- 
praiser in  any  case  within  the  jurisdiction  of  the  court.^ 

wealth  of  the  fact  within  six  months  after  he  has  assumed  the  duties 
of  his  trust;  or  if  the  fact  is  not  known  to  him  within  that  time, 
within  one  month  from  the  time  when  the  fact  becomes  known  to  him. 
R.  L.  c.  15,  §  11. 

1  Corn  or  other  product  of  the  soil,  raised  annually  by  cultivation, 
and  in  a  proper  state  to  be  gathered,  is  personal  estate,  and  goes  to 
the  executor  on  the  death  of  the  owner.  Penhallow  v.  Dwight,  7  Mass. 
34  ;  IVfuUigan  v.  Newton,  16  Gray,  212  ;  Cheshire  Nat.  Bank  v.  Jewett, 
119  Mass.  241. 

2  R.  L.  c.  150,  §  4.  «  R.  L.  c.  139,  §  6. 
4  R.  L.  c.  162,  §  46.  6  R.  L.  c.  164,  §  25. 


INVENTORIES,  ETC.  173 

The  authority  of  appraisers  appointed  by  the  probate  court 
extends  to  the  appraisal  of  property  situated  in  any  part  of 
the  state.^  The  order  of  appraisal  is  usually  issued  on  the 
day  when  the  executor  or  other  officer  is  appointed.  Any 
disinterested  justice  of  the  peace  may  appoint  appraisers  of 
any  part  of  the  estate  which  may  be  in  his  county.^ 

Oath  of  Appraisers.  —  Before  proceeding  to  appraise  the 
estate,  the  appraisers  must  be  sworn  to  the  faithful  dis- 
charge of  their  duties.  The  oath  may  be  administered  by 
any  justice  of  the  peace,  and  a  certificate  thereof  must  be  in- 
dorsed on  the  order  by  the  justice  who  administers  the  oath. 

Return  of  the  Inventory.  —  The  value  of  each  parcel  of 
real  estate  and  of  each  article  of  personal  property  should 
be  separately  stated  in  the  inventory.  The  blanks 
attached  to  the  orders  of  appraisal  indicate  the  form  in 
which  the  return  is  to  be  made. 

If  the  deceased  had  been  a  member  of  a  copartnership, 
and  both  partnership  estate  and  separate  estate  have  come 
to  the  possession  of  the  executor,  such  partnership  estate 
should  be  separately  appraised,  and  returned  in  a  separate 
list. 

The  estates  of  two  or  more  minors  under  guardianship 
of  the  same  person  should  be  returned  in  separate  sched- 
ules, if  the  minors  are  interested  in  different  property,  or 
have  unequal  interests  in  the  same  property. 

^  Appraisers  may  be  appointed  to  appraise  such  property  as  may  be 
subject  to  the  legacy  tax  for  the  purposes  of  said  tax  upon  the  appli- 
cation of  the  treasurer  of  the  commonwealth  or  any  person  interested 
in  the  property.  The  return  of  such  appraiser  may  be  accepted  by 
the  court,  and  if  accepted,  it  is  binding  upon  the  person  by  whom  the 
tax  is  to  be  paid  and  upon  the  commonwealth.     R.  L.  c.  15,  §  16. 

2  R.  L.  c.  139,  §  6.  The  fees  for  the  services  of  appraisers  of  es- 
tates of  deceased  persons  shall  be  such  as  the  court  having  jurisdiction 
of  the  case  may  deem  to  be  just  and  reasonable.     R.  L.  c.  20i,  §23. 


174       PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

The  inventory,  when  completed  by  the  appraisers,  is 
delivered  to  the  executor  or  other  person  having  charge  of 
the  estate  appraised,  who  returns  it  to  the  probate  office 
for  record.  He  is  required  to  make  oath  that  it  is  a  true 
and  perfect  inventory  of  all  the  estate  that  has  come  to 
his  possession  or  knowledge.  The  oath  may  be  adminis- 
tered by  the  judge  or  register  of  probate,  in  or  out  of 
court,  or  by  any  justice  of  the  peace  ;  and  a  certificate  of 
the  oath  must  be  made  on  the  inventory  by  the  officer  who 
administers  it,  and  recorded  with  the  inventory. 

An  administrator  is  bound  to  return  only  one  inventory. 
If  additional  property  comes  to  his  hands,  he  is  bound  to 
account  for  it,  but  not  to  inventory  it.  ^ 

COLLECTION  OF  THE  EFFECTS. 

It  is  not  only  the  duty  of  the  executor  or  administrator 
to  point  out  to  the  appraisers  the  estate  that  has  come  to 
his  possession  or  knowledge,  but  to  take  such  measures 
as  may  be  necessary  for  the  collection  of  debts  due  the 
deceased,  and  for  the  recovery  of  any  money,  goods, 
effects,  or  other  estate  in  the  fraudulent  possession  of 
other  persons.^     The   statute   provides  a  process   for   the 

1  Hooker  v.  Bancroft,  4  Pick.  50.  See  Forbes  v.  McHugh,  152 
Mass.  413,  and  cases  cited. 

2  Gale  V.  Nickerson,  151  Mass.  428;  Flynn  v.  Mass.  Benefit  Asso- 
ciation, 152  Mass.  288;  Burns  v.  Order  of  United  Workmen,  153 
Mass.  173.  An  administrator  who  has  received  letters  of  administra- 
tion under  the  authority  of  another  state,  cannot  prosecute  or  defend 
an  action  in  the  courts  of  this  commonwealth  by  virtue  of  such  letters 
of  administration.  Goodwin  i'.  Jones,  3  Mass.  514  ;  Cassidy  v.  Shim- 
min,  122  Mass.  412. 

Replevin  can  be  maintained  by  an  administrator  in  his  own  name 
for  personal  property  belonging  to  the  estate,  and  attached,  after  his 
appointment,  as  the  property  of  a  third  person.  Kent  v.  Bothwell, 
152  Mass.  311. 

If  the  payee  of  a  promissory  note  dies  before  his  right  of  action 


INVENTORIES,   ETC.  175 

discovery  of  facts,  by  an  examination  in  the  probate  court, 
which  may  be  advantageously  used  as  a  preliminary  step 
to  the  institution  of  a  suit  for  the  recovery  of  property 
fraudulently  withheld  from  the  estate.  The  statute  pro- 
vides that  — 

"  Upon  complaint  to  a  probate  court  by  a  person  inter- 
ested in  the  estate  of  a  person  deceased  against  a  person 
who  is  suspected  of  having  fraudulently  received,  con- 
cealed, embezzled,  or  conveyed  away  any  property,  real  or 
personal,  of  the  deceased,  the  court  may  cite  such  sus- 
pected person,  though  he  is  executor  or  administrator,  to 
appear  and  be  examined  under  oath,  upon  the  matter  of 
the  complaint.  If  the  person  so  cited  refuses  to  appear 
and  to  submit  to  examination,  or  to  answer  such  interrog- 
atories as  may  be  lawfully  propounded  to  him,  the  court 
may  commit  him  to  jail  until  he  submits  to  the  order  of 
the  court.  The  interrogatories  and  answers  shall  be  in 
writing,  signed  by  the  party  examined,  and  shall  be  filed  in 
court."  1 

Like  proceedings  may  be  had  upon  complaint  of  a 
guardian,  ward,  creditor,  or  other  person  interested  in.  the 
estate  of  a  ward,  or  having  claims  thereto  in  expectancy 
as  heir  or  otherwise,  against  any  one  suspected  of  having 
fraudulently  concealed,  embezzled,  or  conveyed  away  any 
of  the  estate  of  the  ward.  The  suspected  person  may  be 
cited  though  he  is  the  guardian.^ 

The  authority  given  to  the  probate  court  by  the  above 

upon  it  is  barred  by  the  statute  of  limitations,  his  administrator  may 
sue  upon  the  note  within  two  years  after  the  granting  of  letters  of 
administration  to  him.     Converse  t'.  Johnson,  146  Mass.  20. 

1  R.  L.  c.  162,  §  43;  Sigourney  v.  Wetherell,  6  Met.  558,  and  cases 
cited;  Leavitt  v.  Leavitt,  135  Mass.  194;  Dickey  v.  Taft,  175  Mass.  4. 

2  R.  L.  c.  145,  §  38 ;  Leavitt  v.  Leavitt,  supra ;  Sherman  v.  Brewer, 
11  Gray,  210. 


176       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

provisions  extends  only  to  an  examination  for  the  purpose 
of  discovery.  No  other  power  is  given.  The  examination 
is  not  to  be  controlled  by  other  evidence,  nor  can  relief 
be  directly  granted  upon  it  by  any  decree  of  the  probate 
court.  The  process  can  only  result  in  a  disclosure  of  facts 
to  serve  as  the  basis  of  other  proceedings.^ 

If  an  executor  or  administrator  unreasonably  delays  to 
raise  money  by  collecting  the  debts  and  effects  of  the 
deceased,  or  by  selling  the  real  estate  if  necessary,  or  if 
he  neglects  to  use  in  the  payment  of  debts  what  money 
he  has  in  his  hands,  and  in  consequence  of  such  delay  or 
neglect  the  estate  of  the  deceased  is  taken  on  execution  by 
his  creditors,  such  delay  or  neglect  shall  be  deemed  to  be 
unfaithful  administration,  and  the  executor  or  administrator 
shall  be  liable  in  an  action  on  his  bond  for  all  damages 
occasioned  thereby .^ 

^  Selectmen  of  Boston  v.  Boylston,  4  Mass.  322.  The  lapse  of 
thirty  years  since  the  transactions  inquired  into,  is  no  bar  to  such 
examination.     O'Dee  v.  McCrate,  7  Greenl.  467. 

In  a  complaint  to  the  judge  of  probate,  for  embezzlement  of  the 
estate  of  a  person  deceased,  the  complainant  having  described  himself 
as  "administrator  and  creditor,"  and  it  appearing  that  he  was  not 
entitled  to  act  as  administrator,  it  was  held,  that  the  words  "  adminis- 
trator and  "  were  material,  and  could  not  be  rejected  as  surplusage. 
Arnold  v.  Sabin,  4  Cush.  46;  Wilson  v.  Leishman,  12  Met.  320. 

The  court  may  permit  the  party  cited  to  appear  and  be  assisted  by 
counsel  in  making  answers  to  the  interrogatories.  Martin  v.  Clapp, 
99  Mass.  470. 

2  Pub.  Stats,  c.  133,  §  2.  This  section  of  the  Public  Statutes  was 
omitted  by  the  compilers  of  the  Revised  Laws  as  superfluous. 


CHAPTER  X. 

ALLOWANCES    TO    WIDOWS,   MINOR  CHILDREN,  AND 
OTHERS. 

TO   WIDOWS    AND    MINOR   CHILDREN. 

"  The  articles  of  apparel  and  the  ornaments  of  the  widow 
and  minor  children  of  a  deceased  person  shall  belong  to 
them  respectively.  The  widow  may  remain  in  the  house 
of  her  husband  for  not  more  than  six  months  next  succeed- 
ing his  death  without  being  chargeable  for  rent. 

"  Such  parts  of  the  personal  property  of  a  deceased  per- 
son as  the  probate  court,  having  regard  to  all  the  circum- 
stances of  the  case,  may  allow  as  necessaries  to  his  widow, 
for  herself  and  for  his  family  under  her  care,  or,  if  there 
is  no  widow,  to  his  minor  children,  not  exceeding  one 
hundred  dollars  to  any  child,  and  also  such  provisions  and 
other  articles  as  are  necessary  for  the  reasonable  sustenance 
of  his  family,  and  the  use  of  his  house  and  of  the  furniture 
therein,  for  six  months  next  succeeding  his  death,  shall  not 
be  taken  as  assets  for  the  payment  of  debts,  legacies,  or 
charges  of  administration.  After  exhausting  the  personal 
property,  real  property  may  be  sold  to  provide  the  amount 
of  allowance  decreed,  in  the  same  manner  as  it  is  sold 
for  the  payment  of  debts,  if  a  decree  authorizing  such  sale 
is  made,  upon  the  petition  of  any  party  in  interest,  within 
two  years  after  the  approval  of  the  bond  of  the  executor 
or  admin istrator.i 

1  R.  L.  c.  140,  §§  1,  2;  Choate  r.  Jacobs,  136  Mass.  298;  Dale  v. 
Hanover  Natl.  Bank,  155  Mass.  141;  Lisk  v.  Lisk,  ibid.  153. 

A  widow  has  the  right  to  expend  money  belonging  to  her  husband's 

12 


178       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  statute  thus  makes  the  apparel  and  ornaments  of 
the  widow  and  minor  children  of  a  deceased  person  their 
absolute  property,  and  secures  to  them  a  home  in  his  house 
for  six  months  after  his  death,  with  such  provisions  and 
other  articles  as  are  necessary  for  their  reasonable  suste- 
nance ;  and  in  addition  to  this  statute  allowance  for  the 
six  months,  the  widow  or  minor  children  of  the  deceased, 
whether  he  was  a  housekeeper  or  not,  are  entitled  to  an 
allowance  for  necessaries,  when  their  circumstances  require 
it,  from  his  personal  estate.  The  power  of  the  probate 
court  to  make  allowances  is  not  limited  to  intestate  estates. 
An  allowance  may  be  granted,  although  provision  was 
made  for  the  widow  by  her  husband's  will  in  lieu  of  dower 
and  accepted  by  her,  and  although  the  executor,  being  also 
residuary  legatee,  has  given  bond  as  such  to  pay  the  debts 
and  legacies.^  A  marriage  contract  by  which  she  released 
all  claim  to  her  husband's  estate  is  no  defence  to  her  peti- 
tion for  an  allowance.^  And  the  widow  may  have  a  second 
allowance  at  any  time  before  the  personal  estate  is  ex- 
hausted.^    A  delay  of  over  two  years  after  the  appointment 

estate,  which  is  in  her  possession  at  the  time  of  his  death,  in  the 
purchase  of  necessaries  for  her  reasonable  support  within  forty  days 
after  his  death.     Fellows  v.  Smith,  130  Mass.  376. 

^  Williams  v.  Williams,  5  Gray,  24. 

A  widow  may  be  entitled  to  an  allowance  though  she  lived  apart 
from  her  husband,  rendering  him  no  services  and  supporting  herself, 
for  several  years  previous  to  his  death.  Slack  v.  Slack,  123  Mass. 
443. 

2  Blackinton  v.  Blackinton,  110  Mass.  461 ;  Paine  v.  Hollister,  139 
Mass.  145 ;  Wentworth  v.  Wentworth,  69  Maine,  247 ;  Nathan  v. 
Nathan,  166  Mass.  294. 

3  Hale  V.  Hale,  1  Gray,  518;  Pettee  v.  Wilmarth,  5  Allen,  145.  But 
after  she  has  been  paid  the  first  allowance,  and  all  the  personal  estate 
has  been  exhausted  in  the  payment  of  debts  and  charges  of  admin- 
istration, though  within  one  year  from  the  appointment  of  the 
administrator,  no  further  allowance  can  be  made  to  her,  nor  can  she 


ALLOWANCES   TO   WIDOWS,   MINOR   CHILDREN,   ETC.      179 

of  the  administrator  in  filing  a  petition  for  a  widow's 
allowance  is  not  fatal  to  the  widow's  right.' 

The  amount  to  be  allowed  the  widow  is  determined  by 
the  court  in  its  discretion.^  There  is  no  rule  to  regulate 
this  discretion,  and  no  rule  could  be  framed  to  meet  the 
great  variety  of  circumstances  upon  which  the  allowance 
depends.  The  amount  is  not  ordinarily  restricted  to  a 
sum  merely  sufficient  for  the  necessaries  of  life,  nor  on 
the  other  hand  is  it  to  be  increased  to  an  extent  incon- 
sistent with  the  object  of  the  allowance.  The  allowance  is 
intended  to  furnish  the  widow,  when  she  is  left  in  distress 
by  the  decease  of  her  husband,  with  necessaries  for  her 
support  for  a  reasonable  time,  within  which  she  can  make 
arrangements  for  her  own  support.^  It  is  not  intended  to 
furnish  her  with  a  capital  for  business  purposes,  or  to 
establish  a  fund  from  which  a  permanent  income  may  be 
derived.  Any  and  all  facts  bearing  upon  the  question  of 
her  necessities  are  to  be  considered,  such  as  the  amount 
of  her  separate  property  and  means ;  *  the  fact  that  she 
is  accustomed  to  earn  her  own  support,  or  the  contrary  ; 
that  she  is  disabled  by  age,  or  otherwise  ;  the  number  of 
her  children  and  the  fact  of  their  tender  age,  etc. 

The  value  of  the  estate,  as  shown  by  the  inventory  and 

have  leave  to  enter  an  appeal  fi'ona  the  decree  making  the  first  allow- 
ance.    Hale  V.  Hale,  1  Gray,  518. 
^  Lisk  V.  Lisk,  155  Mass.  153. 

2  The  question  whether  the  allowance  to  the  widow  should  have 
been  made  by  the  probate  court,  is  not  open  in  a  hearing  upon  the 
administrator's  account.     Newell  v.  West,  149  Mass.  521. 

3  The  purpose  of  a  widow's  allowance  is  merely  to  provide  for  her 
necessities  and  those  of  her  minor  children  for  a  short  time,  until 
they  have  an  opportunity  to  adjust  themselves  to  their  new  situa- 
tion. Dale  V.  Hanover  Natl.  Bank,  155  Mass.  141 ;  Lisk  v.  Lisk,  ibid. 
153 ;  Chase  v.  Webster,  168  Mass.  228. 

*  Hollenbeck  v.  Pixley,  3  Gray,  521. 


180       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

by  additional  evidence,  is  to  be  regarded.  It  may  be  that 
the  personal  estate  has  been  materially  diminished  by 
gifts  made  by  the  deceased,  shortly  before  his  death,  to 
his  heirs  and  others,  while  the  new  duties  and  obligations 
imposed  upon  the  widow  are  not  lessened  by  such  dimi- 
nution. In  such  case,  the  fact  that  such  gifts  have  been 
made  may  be  important  to  sliow  the  actual  condition  of 
the  estate  and  of  the  family.  But  facts  as  to  the  sum 
contributed  by  her  on  her  marriage  to  her  husband's 
estate,  or  as  to  the  value  of  the  services  rendered  to  him 
and  his  family,  while  they  may  show  that  she  is  equitably 
entitled  to  a  considerable  share  of  his  estate,  do  not  bear 
upon  the  question  actually  at  issue,  the  allowance  not 
being  made  to  correct  an  injustice,  but  to  provide  for  her 
necessities.^ 

The  whole  of  the  personal  estate  may  be  given  to  the 
widow  as  an  allowance,  when  the  amount  is  not  so  great 
as  to  be  extravagant.^  She  is  entitled  to  a  reasonable 
allowance,  even  if  the  estate  is  insolvent ;  ^  and  she  is 
entitled  to  the  amount  of  her  allowance  in  priority  to  the 
payment  of  her  husband's  debts,  expenses  of  his  last  sick- 
ness and  funeral,  and  the  charges  of  settling  his  estate.* 
An  allowance  may  be  made  from  the  assets  of  a  partner- 
ship in  the  hands  of  a  surviving  partner  at  the  time  of  his 
death,  although  the  assets  are  not  sufficient  to  pay  the 
partnership  creditors  in  full,^ 

Upon  the  petition  of  the  widow  or  children,  or  either  of 

1  Washburn  v.  Washburn,  10  Pick.  374;  Adams  v.  Adams,  10  Met. 
170;  Hollenbeck  v.  Pixley,  3  Gray,  525;  Dale  v.  Hanover  Natl.  Bank, 
155  Mass.  141. 

2  Brazer  v.  Dean,  15  Mass.  183;  Bush  v.  Clark,  127  Mass.  114. 
^  Dale  V.  Hanover  Natl.  Bank,  supra. 

*  Kingsbury  v.  Wilmarth,  2  Allen,  310. 

*  Bush  V.  Clark,  supra. 


ALLOWANCES   TO   WIDOWS,   MINOR   CHILDREN,   ETC.      181 

them,  the  probate  court  may,  after  notice  to  all  parties 
interested,  make  a  reasonable  allowance  out  of  the  income 
of  the  estate,  real  or  personal,  in  the  hands  of  a  special 
administrator  appointed  on  account  of  the  pendency  of  a 
suit  concerning  the  probate  of  a  will,  as  an  advancement 
for  their  support,  not  exceeding  such  portion  of  the  in- 
come of  the  estate  as  they  would  be  entitled  to  whether 
the  will  is  finally  proved  or  not.  An  appeal  from  the 
decree  concerning  such  allowance  will  not  prevent  the 
payment  of  the  sum  decreed  if  the  petitioner  gives  bond 
to  the  special  administrator,  with  sureties  approved  by 
the  court,  conditioned  to  repay  the  same  if  the  decree  is 
reversed.^ 

The  allowance  cannot  be  made  from  the  proceeds  of  real 
estate  sold  for  the  payment  of  debts;  for  the  surplus  of 
such  proceeds,  if  any,  is  required  by  statute  to  be  treated 
as  real  estate,  and  disposed  of  among  the  same  persons 
and  in  the  same  proportions  as  the  real  estate  would  have 
been  if  it  had  not  been  sold.^  But  since  the  Revised  Laws 
took  effect,  the  probate  court  may  authorize  the  sale  of 
real  estate,  after  the  personal  property  has  been  exhausted, 
to  provide  the  amount  of  allowance  decreed. 

The  petition  for  an  allowance  to  the  widow  or  minor 
children  sets  forth  the  fact  tliat  there  are  personal  assets 
belonging  to  the  estate  in  question  from  which  she  or  they 
are  entitled  to  an  allowance,  and  prays  that  an  allowance 
may  be  decreed  accordingly.  When  the  next  of  kin  of  the 
deceased  ai'e  otlier  than  his  minor  children,  notice  of  the 

^  11.  L.  c.  137,  §  32;  Chandler  v.  R.  R.  Commissioners,  141  Mass. 
211. 

"Support"  includes  not  merely  board,  but  everything  necessary 
to  proper  maintenance.     Gould  v.  Lawrence,  160  Mass.  232. 

2  R.  L.  c.  148,  §  9;  Hale  v.  Hale,  1  Gray,  523;  Haven  v.  Foster, 
9  Pick.  130. 


182       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

widow's   petition   is    usually    given   to   parties   interested 
before  a  decree  is  made.^ 

The  widow,  or  any  person  aggrieved  by  the  decree  of  the 
court  upon  l)er  petition,  may  appeal  to  the  supreme  court 
of  probate;  ^  and  the  appeal,  except  when  the  allowance  is 
made  from  the  income  of  the  estate  in  the  hands  of  a  special 
administrator,  stays  all  proceedings  under  the  decree  until 
the  matter  is  determined  by  the  supreme  court  of  probate. 

The  allowance  to  the  widow  for  necessaries  is  not  to  be 
confounded  with  her  distributive  share  of  her  husband's 
estate.  That  is  a  vested  right  of  property  which  she  takes 
by  a  title  as  high  as  that  of  a  child  or  other  next  of  kin ; 
and  it  goes  to  her  personal  representative.^  But  the  pro- 
vision for  necessities  is  temporary  in  its  nature  and  per- 
sonal in  its  character,  and  confers  no  absolute  or  contingent 
right  of  property  which  can  survive  her.  If,  therefore,  an 
appeal  is  taken  from  a  decree  making  an  allowance,  and 
she  dies  before  the  appeal  is  entered  in  the  appellate  court, 
all  further  proceedings  are  stayed  ;  and  the  decree  of  the 
probate  court,  which  was  vacated  by  the  appeal,  cannot  be 
revived.^ 

1  If  an  allowance  is  made  without  notice  to  the  parties  interested, 
the  supreme  court  of  probate,  in  its  discretion,  will  allow  an  appeal, 
after  the  expiration  of  thirty  days,  upon  a  petition  filed  under  Pub. 
Stats,  c.  156,  §  9  (now  R.  L.  c.  162,  §  1.3),  although  by  the  statute 
no  notice  is  required  except  in  cases  in  which  special  administration 
is  granted.     Wright  v.  Wright,  13  Allen,  207. 

2  And  the  appellate  court  will  not  inquire  into  the  probate  discretion, 
Litchfield  v.  Cudworth,  15  Pick.  23;  Ward  v.  Ward,  ibid.  511. 

A  probate  judge  has  no  authority  to  revoke  a  decree  passed  by 
himself,  making  an  allowance  to  a  widow  out  of  her  husband's  estate, 
and  to  pass  a  new  decree  allowing  her  a  less  sum.  Pettee  r.  Wil- 
marth,  5  Allen,  144 ;  Marsh  v.  McKenzie,  99  Mass.  67 ;  Richardson  v. 
Hazelton,  101  Mass.  108. 

8  Foster  v.  Fifield,  20  Pick.  67 ;  Proctor  v.  Clark,  154  Mass.  49. 

*  Adams  v.  Adams,  10  Met.  170;  Drew  v.  Gordon,  13  Allen,  120. 


ALLOWANCES   TO   WIDOWS,   MINOR   CHILDREN,   ETC.      183 

A  widow's  claim  for  an  allowance  made  to  her  may  be 
enforced,  after  demand  and  refusal,  by  an  action  brought 
by  her  against  the  executor.^ 

ALLOWANCES   TO   WIVES   OF    INSANE   PERSONS   UNDER 
GUARDIANSHIP. 

The  statute  provides  that  the  probate  court  for  the 
county  in  which  the  guardian  of  an  insane  person  has 
been  appointed,  may  make  an  allowance  out  of  the  estate 
of  such  insane  person  for  the  support  of  his  wife,  to  be 
paid  to  her  by  the  guardian  during  the  continuance  of  the 
guardianship  in  such  manner  as  the  court  shall  direct.^ 

The  allowance  under  this  provision  is  not  limited  merely 
to  necessaries  for  the  wife.  It  is  intended  for  her  support, 
and  the  amount  of  the  allowance  must  be  proportioned  to 
the  condition  and  circumstances  of  the  husband.  It  should 
be  sufficient  for  her  support  in  a  manner  consistent  with 
the  prudent  use  and  management  of  his  estate. 

The  order  of  the  court  fixing  the  amount  of  the  allow- 
ance may  also  direct  the  guardian  as  to  the  time  and 
manner  of  its  payment  to  the  wife. 

On  the  application  of  the  guardian  of  an  insane  person, 
or  of  a  child  or  the  guardian  of  a  child  of  an  insane  per- 
son, and  after  notice  to  all  persons  interested,  the  probate 
court  may  authorize  and  require  the  guardian  of  such  in- 
sane person  to  apply  such  portion  as  the  court  may  direct 
of  the  income  of  the  ward,  which  is  not  required  for  his 
maintenance  and  support,  to  the  maintenance  and  support 
of  any  child  of  the  ward.^ 

1  Drew  V.  Gordon,  13  Allen,  120;  Cobb  v.  Kempton,  154  Mass.  269. 

2  R.  L.  c.  145,  §  31. 
8  Ibid.  §  30. 


CHAPTER  XI. 

SALE  OF  PERSONAL  ESTATE  BY  EXECUTORS  AND  OTHERS. 
—  SALES  AND  INVESTMENTS  BY  GUARDIANS  AND  TRUS- 
TEES.—TEMPORARY  INVESTMENTS  BY  EXECUTORS. 

The  probate  court,  after  the  return  of  the  inventory,  on 
application  made  by  an  executor  or  administrator,  or  by 
any  person  interested  in  the  estate,  may  order  a  part  or 
the  whole  of  the  personal  estate  of  the  deceased  to  be  sold 
by  public  auction  or  private  sale,  as  shall  be  deemed  most 
for  the  interest  of  all  concerned.^  The  executor  or  admin- 
istrator accounts  for  the  property  at  a  price  for  which  it 
sells. 

The  personal  property  is  generally  sold  by  executors 
and  administrators  without  any  previous  order  of  the 
court ;  and  if  they  act  in  good  faith  and  with  sound  dis- 
cretion, the  interests  of  no  person  concerned  can  be  in- 
juriously affected  by  such  proceeding.^  The  subsequent 
approval  of  the  court  is  practically  equivalent  to  a  pre- 
vious order.  The  executor  or  administrator,  however, 
makes  a  sale  without  first  obtaining  license  at  his  own 
risk,  and  when  it  is  probable  that  the  property  cannot  be 
sold  for  its  appraised  value,  he  should  apply  to  the  court 

1  So  provided  by  Pab.  Stats,  c.  133,  §  3,  which  was  omitted  as 
superfluous  by  the  compilers  of  the  Revised  Laws;  Jennison  v.  Hap- 
good,  10  Pick.  77. 

2  R.  L.  c.  1.50,  §  4.  A  trustee  under  a  will  filed  in  the  probate 
court  an  inventory  of  certain  shares  of  stock.  He  afterwards  misap- 
propriated the  stock.  It  was  held  that  he  should  be  charged  with 
the  valuation  in  the  inventory.     McKim  v.  Hibbard,  142  Mass.  422. 


SALE  OF  PERSONAL  ESTATE.  —  INVESTMENT.     185 

for  leave  to  make  the  sale,  and  thereby  limit  his  responsi- 
bility to  account.^ 

Mortgages  of  land  and  the  debt  secured  thereby  are 
personal  estate  in  the  hands  of  the  executor  or  adminis- 
trator, and  so  are  lands  taken  on  execution  for  a  debt  due 
the  testator  or  intestate ;  and  real  estate  so  held  in  mort- 
gage or  taken  on  execution  may  he  sold,  subject  to  the 
right  of  redemption,  at  any  time  before  the  right  of  re- 
demption is  foreclosed,  in  the  same  manner  as  personal 
estate  of  a  person  deceased,^ 

The  probate  court  upon  petition  of  the  executor  or  ad- 
ministrator, and  after  such  notice  thereof  to  the  parties 
interested  as  the  court  may  order,  may,  for  the  purpose  of^ 
closing  the  settlement  of  an  estate,  license  the  executor  or 
administrator  to  sell  and  assign  any  outstanding  debts 
and  claims  which  cannot  be  collected  without  inconvenient 
delay .^  The  petition  for  leave  to  make  such  sale  or  assign- 
ment should  set  forth  the  nature  of  the  debt  or  claim  to  be 
sold,  and  the  reasons  for  the  proposed  sale.  The  sale 
is  required  to  be  conducted  in  such  manner  as  the  court 
having  regard,  as  far  as  it  may  be  thought  advisable  or 
prudent,  to  the  law  in  relation  to  sales  of  real  estate  by 
executors  and  administrators,  shall  order.*     This  provision 

1  Denholm  v.  McKay,  148  Mass.  434. 

2  R.  L.  c.  150,  §§  7,  9,  10. 

^  So  provided  in  Pub.  Stats,  c.  133,  §  4,  omitted  as  superfluous  by 
the  compilers  of  the  Revised  Laws. 

*  Suits  for  the  recovery  of  debts  or  claims  so  sold  and  assigned  are 
brought  in  the  name  of  the  purchasers.  The  fact  of  the  sale  must  be 
set  forth  in  the  writ  or  declaration,  and  the  defendant  may  avail  him- 
self of  any  matter  of  defence  of  which  he  could  have  availed  himself 
in  a  suit  brought  by  the  executor  or  administrator.  Costs  are  recov- 
ered by  or  against  the  plaintiff,  and  the  executor  or  administrator  is 
not  liable  therefor.  Such  a  suit,  if  brought  upon  a  witnessed  promis- 
sory note,  is  not  barred  by  the  general  statute  of  limitations,  if  it 


186       PROCEEDINGS  IN  THE  PEOBATE  COURTS. 

for  the  sale  of  debts  and  claims  does  not  deprive  executors 
and  administrators  of  the  right  to  transfer  at  pleasure 
deeds  of  mortgage,  and  the  real  estate  conveyed  and  the 
debts  secured  thereby. 

Probate  courts  may  authorize  executors,  administrators, 
guardians,  and  trustees  to  release  and  discharge,  upon  such 
terms  and  conditions  as  appear  proper,  any  vested,  con- 
tingent, or  possible  right  or  interest  belonging  to  the 
persons  or  estates  by  them  represented  in  or  to  any  real 
or  personal  estate,  whenever  it  appears  to  be  for  the  ben- 
efit of  the  persons  or  estates.  Notice  of  the  application  in 
such  cases  must  be  given  as  in  cases  of  sale  of  real  estate.^ 

*'  An  executor,  administrator,  guardian,  or  trustee  duly 
appointed  in  another  state  or  in  a  foreign  country,  and 
duly  qualified  and  acting,  who  may  be  entitled  to  any 
personal  property  situated  in  this  commonwealth,  may  file 
an  authenticated  copy  of  his  appointment  in  the  probate 
court  for  any  county  in  which  there  is  real  property  of  his 
trust  or,  if  there  is  no  such  real  property,  in  any  county  in 
which  there  is  personal  property  of  his  trust,  and  may  upon 
petition  to  said  court,  after  such  notice  to  the  treasurer  and 
receiver-general,  creditors,  and  all  persons  interested,  as  said 
court  may  order,  be  licensed  to  receive  or  sell  by  public 
or  private  sale  upon  such  terms  and  to  such  person  or  per- 
sons as  he  shall  think  fit,  or  otherwise  to  dispose  of,  and 
to  transfer  and  convey,  shares  in  a  corporation  or  other 
personal  property,  if  the  court  finds  that  there  is  no  execu- 

could  be  maintained  by  the  executor  or  administrator.  R.  L.  c.  173, 
§5. 

An  administrator  of  a  mortgagee  intestate  may  sell  a  mortgage  not 
foreclosed  without  license  from  the  probate  court.  Burt  v.  Ricker, 
6  Allen,  78.  Before  1849  such  a  license  was  necessary.  Ex  parte 
Blair,  13  Met.  126. 

1  R.  L.  c.  148,  §  4. 


SALE  OF  PERSONAL  ESTATE. — INVESTMENT.     187 

tor,  administrator,  guardian,  or  trustee  appointed  in  this 
commonwealth  who  is  authorized  so  to  receive  and  dispose 
of  such  shares  or  estate,  and  that  such  foreign  executor, 
administrator,  guardian,  or  trustee  will  be  liable,  upon  and 
after  such  receipt  or  sale,  to  account  for  such  shares  or 
estate,  or  for  the  proceeds  thereof,  in  the  state  or  country 
in  which  he  was  appointed  ;  and  that  no  person  resident  in 
this  commonwealth  and  interested  as  a  creditor  or  other- 
wise objects  to  the  granting  of  such  license,  or  appears  to 
be  prejudiced  thereby  ;  but  no  such  license  shall  be  granted 
to  a  foreign  executor  or  administrator  until  the  expiration 
of  six  months  after  the  death  of  his  testator  or  intestate."  ^ 

SALES   AND    INVESTMENT   BY    GUARDIANS. 

The  probate  court  may,  upon  the  application  of  a  guardian, 
or  of  any  person  interested  in  the  estate  of  a  ward,  and 
after  notice  to  all  other  persons  interested,  authorize  or 
require  the  guardian  to  sell  and  transfer  any  personal 
property  held  by  him  as  guardian  and  to  invest  the  proceeds 
thereof  and  all  other  moneys  in  his  hands  in  such  manner 
as  may  be  most  for  the  interest  of  all  concerned.  Said 
court  may  make  such  further  order  and  give  such  directions 
as  the  case  may  require  for  the  management,  investment, 
and  disposition  of  the  estate  in  the  hands  of  the  guardian.^ 

SALES    AND    INVESTMENT    OF   ESTATES    HELD   IN   TRUST. 

"  If  the  sale  and  conveyance,  transfer  or  exchange,  of  any 
real  or  personal  property  held  in  trust,  or  the  partition  of 
any  such  real  property  held  in  common  and  undivided, 

1  R.  L.  c.  148,  §  3. 

2  R.  L.  c.  145,  §  35;  Kavanaugh  »'.  Kavanaugh,  146  Mass.  42-, 
May  V.  Skiuner,  149  Mass.  380.  The  guardian  of  an  insane  person 
may  be  authorized  to  invest  all  the  property  of  his  ward  in  the  pur- 
chase of  an  annuity  on  his  life.     Hooper,  Petitioner,  120  Mass.  102. 


188       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

appears  to  be  necessary  or  expedient,  the  supreme  judicial 
court,  the  superior  court,  or  the  probate  court,  may,  upon 
petition  of  a  trustee  or  other  party  interested,  after  notice 
and  other  proceedings  as  hereinafter  required,  order  such 
sale  and  conveyance,  transfer,  exchange,  or  partition  to  be 
made,  and  the  investment,  re-investment,  and  application 
of  the  proceeds  of  such  sale  in  such  manner  as  will  best 
effect  the  objects  of  the  trust.^ 

"  If  the  court,  upon  proceedings  under  the  provisions  of 
the  preceding  section,  finds  that  the  estate  which  is  the 
subject  of  the  petition  may  be  held  in  trust  for,  or  that  a 
remainder  or  contingent  interest  therein  may  be  limited 
over  to,  persons  not  ascertained  or  not  in  being,  notice 
shall  be  given  in  such  manner  as  the  court  may  order  to  all 
persons  who  are  or  may  become  interested  in  such  estate, 
and  to  all  persons  whose  issue,  not  then  in  being,  may  be- 
come so  interested  ;  and  the  court  shall  of  its  own  motion 
in  every  such  case  appoint  a  suitable  person  to  appear  and 
act  therein  as  the  next  friend  of  all  persons  not  ascertained 
or  not  in  being,  who  are  or  may  become  interested  in  such 

^  R.  L.  c.  147,  §  15;  If  a  trustee  conveys  trust  property  to  himself, 
the  conveyance  may  be  avoided  by  a  part  only  of  the  cesiuis  que  trust. 
Morse  v.  Hill,  136  Mass.  60. 

An  executor  acting  as  trustee  under  a  will  has  the  power  to  sell  the 
property  held  in  trust.  Jones  v.  Atchison,  Topeka  &  Santa  F6  Rail- 
road, 150  Mass,  304. 

It  is  an  improper  investment  of  a  trust  fund  for  the  trustee  to  buy 
of  himself  with  it  a  mortgage  of  real  estate  which  is  worth  much  less 
than  the  amount  of  the  fund  so  invested ;  and  the  facts  that  sub- 
sequently the  cestui  que  trust  authorized  the  trustee  to  bid  off  the 
mortgaged  property  for  him  at  a  sale  of  the  same,  and  took  a  convey- 
ance of  it,  cannot  avail  the  trustee,  if  the  cestui  que  trust  acted  solely 
on  the  false  representations  of  the  trustee  as  to  the  value  of  the 
property,  and  on  learning  the  truth,  promptly  demanded  that  he 
should  take  back  the  property  and  account  for  the  sum  invested  in  the 
mortgage.     Nichols,  Appellant,  157  Mass.  20. 


SALE   OF   PERSONAL  ESTATE.  —  INVESTMENT.  189 

estate,  and,  the  provisions  of  sections  twenty-three  and 
twenty-four  of  chapter  one  hundred  and  forty -five  "  [of  the 
Revised  Laws,  relative  to  appointment  of  guardian  ad  litem 
and  next  friend,  and  to  the  payment  of  the  expenses  and 
compensation  of  a  guardian  ad  litem  or  next  friend,  includ- 
ing the  compensation  of  his  counsel]  "  which  are  not  in- 
consistent herewith  shall  apply  to  such  appointment.  A 
conveyance  or  transfer  made  after  such  notice  and  proceed- 
ing shall  be  conclusive  upon  all  persons  for  whom  such 
guardian  ad  litem  or  next  friend  was  appointed."  ^  The 
trustee,  when  not  himself  the  petitioner,  must  be  made  a 
party  to  the  proceedings  by  notice. 

Under  these  provisions  of  the  statute,  the  trustee,  in 
case  of  a  difference  of  opinion  between  him  and  the  persons 
interested  in  the  estate  in  regard  to  the  disposition  to  be 
made  of  the  property  in  his  hands,  may  protect  himself  by 
obtaining  the  direction  of  the  court.  And  if  the  trustee' 
should  neglect  to  apply  for  the  direction  of  the  court,  any 
person  interested  in  the  trust  estate  may  make  the  appli- 
cation. It  may  happen  that  some  particular  disposition 
of  the  funds  may  be  unsafe  or  improper,  and  such  as  the 
courts  would  not  have  sanctioned  on  a  previous  application, 
and  yet  it  may  not  be  such  as  to  make  the  trustee  liable 
as  for  misconduct  in  the  discharge  of  his  trust.  In  such  a 
case,  tlie  loss  or  damage  that  would  otherwise  result  may 
be  prevented  by  an  application  to  the  court  on  the  part  of 
some  person  interested  in  the  estate. 

The  application,  whether  made  by  the  trustee  or  by  a 

1  R.  L.  c.  147,  §  16 ;  Boston  Safe  Deposit  &  Trust  Co.  v.  Mixter, 
146  Mass.  105 ;  Dexter  v.  Cotting,  149  Mass.  95.  A  notice  of  a  sale 
of  a  trust  estate  addressed  to  the  "heirs  at  law,  next  of  kin,  and  all 
other  persons  interested"  is  sufficient.  Boston  Safe  Deposit  &  Trust 
Co.  V.  Mixter,  supra. 


190       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

person  interested  in  the  estate,  should  state  all  the  facts 
of  the  particular  case,  and  pray  for  the  direction  of  the 
court. 

If  a  person  who  is  seised  or  possessed  of  real  or  personal 
property,  or  of  an  interest  therein,  upon  a  trust,  express 
or  implied,  is  under  the  age  of  twenty-one  years,  insane, 
out  of  the  commonwealth,  or  not  amenable  to  the  process 
of  any  court  therein  which  has  equity  powers,  and  when 
in  the  opinion  of  the  supreme  judicial  court,  the  superior 
court,  or  of  a  probate  court  it  is  fit  that  a  sale  should  be 
made  of  such  property  or  of  an  interest  therein,  or  that  a 
conveyance  or  transfer  should  be  made  thereof  in  order  to 
carry  into  effect  the  objects  of  the  trust,  the  court  may 
order  such  sale,  conveyance,  or  transfer  to  be  made,  and 
may  appoint  a  suitable  person  in  the  place  of  such  trustee 
to  sell,  convey,  or  transfer  the  same  in  such  manner  as 
it  may  require.  If  a  person  so  seised  or  possessed  of  an 
estate,  or  entitled  thereto  upon  a  trust,  is  within  the  juris- 
diction of  the  court,  he  or  his  guardian  may  be  ordered  to 
make  such  conveyances  as  the  court  orders.^ 

TEMPORARY   INVESTMENTS   BY   EXECUTORS   AND 
ADMINISTRATORS. 

A  probate  court  may,  upon  application  of  a  person  inter- 
ested in  an  estate  in  process  of  settlement  in  such  court, 
direct  the  temporary  investment  of  the  money  belonging 

1  R.  L.  c.  147,  §  17;  Felch  v.  Hooper,  119  Mass.  52.  See  McCann 
V.  Randall,  117  Mass.  98 ;  VVilsou  v.  Wilson-Martin  Fire  Alarm  Co., 
151  Mass.  515. 

A  foreign  corporation  having  its  usual  place  of  business  in  this 
commonwealth  is  not  within  the  purview  of  this  statute.  Desper  v. 
Continental  Water  Meter  Co.,  137  Mass.  252.  Nor  is  a  non-resident 
who  has  agreed  to  purchase  land  in  this  commonwealth  and  has  not 
been  served  with  process  therein.     Merrill  v.  Beckwith,  163  Mass.  503. 


SALE  OF  PERSONAL  ESTATE.  —  INVESTMENT.     191 

to  such  estate  in  securities  to  be  approved  by  the  judge ; 
or  may  authorize  the  same  to  be  deposited  in  any  bank  or 
institution  in  the  commonwealth  which  is  empowered  to 
receive  such  deposits,  upon  such  interest  as  said  bank  or 
institution  may  agree  to  pay.^ 

1  R.  L.  c.  162,  §  39. 


CHAPTER  XTI. 

NOTICE  OF  THE  APPOINTMENT  OF  EXECUTORS,  ETC.,  AND 
PAYMENT   OF   DEBTS  AND  LEGACIES. 

The  statute  provides  that  "  an  executor  or  administrator 
shall,  within  three  months  after  giving  bond  for  the  dis- 
charge of  his  trust,  cause  notice  of  his  appointment  to  be 
posted  in  two  or  more  public  places  in  the  city  or  town  in 
which  the  deceased  last  dwelt ;  or  he  may  be  required  by 
the  probate  court  to  give  notice  by  publication  in  some 
newspaper,  or  in  such  other  manner  as  the  court  may 
order."  ^  The  letter  testamentary  or  of  administration, 
issued  to  the  executor  or  administrator,  directs  the  manner 
in  which  the  notice  is  to  be  given  in  each  case.  A  strict 
compliance  with  the  terms  of  the  order  is  necessary,  in 
connection  with  the  payment  of  debts,  to  protect  the 
interests  of  the  heirs  or  devisees  as  well  as  of  the  executor 
or  administrator.^  Unless  the  notice  is  given,  the  statute 
limiting  the  time  with  which  suits  may  be  brought  against 
the  executor  or  administrator  will  not  apply. 

The  notice  having  been  given,  the  statute  provides  a  sure 
and  convenient  mode  of  perpetuating  evidence  of  the  fact. 

1  R.  L.  c.  130,  §  1.  Any  daily  or  weekly  periodical  devoted  ex- 
clusively to  legal  news,  which  has  been  published  in  the  common- 
wealth for  six  consecutive  months,  shall  be  deemed  a  newspaper  for  the 
insertion  of  legal  notices  required  by  law,  if  the  publication  of  such 
notice  in  such  periodical  is  ordered  by  the  court.  R.  L.  c.  8,  §  5, 
el.  13. 

2  An  executor's  notice  is  sufficient,  though  signed  by  him  as 
"administrator,"  and  he  describes  himself  therein  as  "  duly  appointed 
administrator."     Finney  v.  Barnes,  97  Mass.  401. 


NOTICE   OF   APPOINTMENT   OF   EXECUTORS,   ETC.  193 

An  affidavit  of  the  executor  or  administrator,  or  of  the 
])erson  employed  by  him  to  give  such  notice,  being  made 
before  the  judge  or  a  justice  of  the  peace,  and  filed  and 
recorded  with  a  copy  of  the  notice  in  the  probate  office,  is 
made  evidence  by  statute  of  the  time,  place,  and  manner 
in  which  the  notice  was  given.^  The  fact  that  notice  was 
duly  given  may  be  proved  whenever  it  becomes  material 
by  other  evidence  ;2  but  questions  as  to  the  fact  of  notice 
may  not  be  raised  until  after  the  lapse  of  several  years, 
when  it  may  be  difficult  and  perhaps  impossible  for  the 
executor  or  administrator  to  show  his  compliance  with 
the  order  of  the  court  by  any  of  the  ordinary  means  of 
proof.  The  affidavit  should  therefore  be  made  and  recorded 
in  every  case.^ 

If  by  accident  or  mistake  notice  is  not  given,  or  the 
evidence  is  not  so  perpetuated,  the  probate  court,  on  the 
petition  of  the  executor  or  administrator,  may  order  such 
notice  to  be  given  at  any  time  afterwards ;  in  which  case 
the  periods  of  time  limited  for  the  commencement  of 
actions  against  executors  and  administrators  and  for  other 
purposes,  which  run  from  the  time  of  their  giving  bond, 
shall  run  from  the  time  of  passing  such  order.  And  no 
such  order  will  exempt  the  executor  or  administrator  from 
any  liability  for  damages  incurred  by  reason  of  his  omission 
to  give  notice  within  the  three  months.* 

1  R.  L.  c.  139,  §2;  c.  146,  §  15. 

2  Estes  V.  Wilkes,  16  Gray,  363.  See  Hudson  v.  Hulbert,  15  Pick. 
423. 

2  The  fact  that  the  notice  has  been  given  as  ordered  may  be  proved 
by  the  affidavit  of  persons  other  than  the  executor  or  administrator,  or 
the  person  employed  by  him  to  give  such  notice,  by  permission  of 
the  probate  court  upon  satisfactory  evidence  that  the  notice  was 
given  as  ordered.     R.  L.  c.  139,  §  2 ;  c.  146,  §  15. 

*  R.  L.  c.  139,  §§  3,  4. 

In  cases  when  executors,  administrators,  guardians,  or  trustees,  or 

13 


194       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  an  executor,  administrator,  guardian,  or  trustee,  at 
the  time  of  his  appointment  resides  out  of  the  common- 
wealth, he  is  required  to  appoint  in  writing  an  agent 
residing  here  upon  whom  service  of  legal  process  against 
him  as  such  executor  can  be  made,  and  he  will  not  be 
entitled  to  receive  his  letters  of  appointment  as  executor 
until  he  has  appointed  an  agent.  Such  appointment  must 
be  in  writing,  and  filed  in  the  registry  of  probate  ;  and  in 
publishing  notice  of  his  own  appointment  the  executor 
must  state  the  name  and  address  of  his  agent.  If  an 
executor  removes  from  the  commonwealth,  he  must  ap- 
point an  agent  in  like  manner ;  and  if  an  agent  dies  or 
removes  from  the  commonwealth  before  the  final  settle- 
ment of  the  estate,  another  like  appointment  must  be 
made.  The  powers  of  an  agent  so  appointed  cannot  be 
revoked  until  the  final  settlement  of  the  estate,  unless 
another  like  agent  is  appointed,  and  such  appointment 
filed  in  the  registry  of  probate.  Neglect  or  refusal  on 
the  part  of  an  executor  to  comply  with  these  requirements 
may  be  deemed  good  cause  for  his  removal,  and  the  ser- 
vice of  any  legal  process  upon  such  agent  shall  be  of  the 
same  legal  effect  as  if  made  upon  his  principal  when  in 
the  commonwealth.^ 

the  persons  employed  by  them  to  give  notice  of  appointment,  or  notice 
of  sale  of  real  estate,  have  failed  to  file  in  the  probate  court  affidavit 
of  such  notice,  and  such  affidavit  cannot  be  obtained,  the  probate  court 
may,  upon  petition  of  any  person  interested  in  real  estate,  the  title  to 
which  may  be  affected  thereby,  setting  forth  the  particular  failure 
complained  of,  and  averring  that  the  affidavit  cannot  now  be  obtained, 
order  notice  by  publication  to  creditors  of,  and  others  interested  in,  the 
estate  in  the  settlement  of  which  the  failure  complained  of  occurred. 

Upon  return  of  such  notice,  and  after  hearing,  if  the  court  is  satisfied 
that  notice  was  in  fact  given,  it  may  make  a  decree  that  such  notice 
was  in  fact  given.     R.  L.  c.  148,  §  26. 

1  R.  L.  c.  139,  §  8;  c.  145,  §  42;  c.  147,  §  14;  c.  163,  §  53. 


LIMITATION   OF   ACTIONS   AGAINST   EXECUTORS,   ETC.      195 


PAYMENT   OF   DEBTS. 

Limitation  of  Actions  against  Executors  and  Adminis- 
trators. —  No  executor  or  administrator,  after  having  given 
notice  of  his  appointment,  as  required  by  law,  can  be  held 
to  answer  to  the  suit  of  any  creditor  of  the  deceased, 
unless  it  is  commenced  within  two  years  from  the  time  of 
his   giving   bond,i  except  when   new  assets  come   to   his 

^  In  computing  the  two  years,  the  day  on  which  the  bond  is  given 
is  to  be  exckided.     Paul  v.  Stone,  112  Mass.  27. 

An  executor  is  not  liable  as  such,  after  the  expiration  of  two  years 
from  the  time  of  his  giving  bond,  to  an  action  on  a  covenant  of 
warranty  in  a  deed  from  his  testator,  although  the  covenant  is  not 
broken  until  after  the  expiration  of  two  years ;  and  although  the 
executor  is  residuary  legatee,  and  has  given  bond  for  the  payment  of 
debts  and  legacies,  and  takes  the  assets  to  himself  without  filing  an 
inventory.     Ilolden  v.  Fletcher,  6  Cash.  235. 

A  bond  without  surety  approved  by  the  probate  court,  without 
notice  to  creditors,  is  not  such  a  bond  as  the  statutes  require,  and 
the  statute  limitation  will  not  apply.  Abercrombie  v.  Sheldon, 
8    AKen,    532. 

A  collector  of  taxes  cannot  maintain  an  action  after  the  two  years 
have  expired.  Rich  v.  Tuckerman,  121  Mass.  222;  Dallinger  r.  Davis, 
149  Mass.  63. 

The  opeiation  of  this  statute  is  not  suspended  by  the  statute  provi- 
sions relating  to  the  insolvent  estates  of  deceased  persons.  Aiken  v. 
Morse,  104  Mass.  277;  Blanchard  v.  Allen,  116  Mass.  447. 

Leaving  claims  with  the  register  of  probate  and  his  indorsement 
thereon  that  they  were  presented  for  allowance  within  two  years  from 
the  filing  of  the  administrator's  bond,  is  equivalent  to  beginning  suit, 
and  avoids  the  bar  of  the  statute  of  limitations.  Robinson  v.  Robin- 
son, 173  Mass.  233. 

An  action  on  a  decree  of  the  probate  court  for  the  payment  of  a 
balance  due  from  the  estate  of  a  deceased  guardian  to  his  ward  is 
barred  in  two  years  from  the  appointment  of  the  guardian's  adminis- 
trator, although  the  decree  was  not  obtained  until  the  two  years  had 
expired.     Berais  v.  Bemis,  13  Gray,  559. 

A  creditor  who  recovers  a  judgment  against  an  executor  on  an 
action  brought  within  the  two  years,  cannot  bring  an  action  upon  the 


196       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

bands  after  the  expiration  of  the  two  years,  in  which  case 
he  is  liable  to  an  action  if  brought  within  one  year  after 

judgment  after  the  expiration  of  the  two  years,  although  the  executor 
has  given  bond  to  pay  debts  and  legacies.  Jenkins  v.  Wood,  134 
Mass.  115.  Nor  will  an  action  lie  on  such  judgment  against  the 
executor  personally.     Jenkins  v.  Wood,  140  Mass.  G6. 

If  the  supreme  judicial  court,  upon  a  bill  in  equity  filed  by  a  cred- 
itor whose  claim  has  not  been  prosecuted  within  the  two  years,  is  of 
opinion  that  justice  and  equity  require  it,  and  that  such  creditor  is 
not  chargeable  with  culpable  neglect  in  not  prosecuting  his  claim 
within  the  time  limited,  it  may  give  him  judgment  for  the  amount  of 
his  claim  against  the  estate  of  the  deceased  person  ;  but  such  judg- 
ment will  not  affect  any  payment  or  distribution  made  before  the 
filing  of  such  bill.  R.  L.  c.  141,  §  10;  Knight  v.  Cunningham,  IGO 
Mass.  580 ;  Ewing  v.  King,  169  Mass.  97.  Ignorance  of  the  statute 
limitation  will  not  relieve  the  creditor  from  the  imputation  of  culpable 
neglect.  Jenney  v.  Wilcox,  9  Allen,  245.  The  rights  of  creditors  to 
collect  their  demands  cannot  be  tried  on  a  bill  in  equity  brought  by  the 
executor  to  obtain  the  instructions  of  the  court.  Bradford  v.  Forbes, 
ibid.  365.  Where  the  creditor  lived  out  of  the  state,  and  was  assured 
by  the  executors  that  no  further  legal  proceedings  on  her  part  were 
necessary,  and  she  neglected  to  prosecute  within  the  two  years,  it  was 
held  that  the  bill  in  equity  could  not  be  maintained.  Wells  v.  Child, 
12  Allen,  333.  Nor  is  a  creditor  entitled  to  relief  under  R.  L.  c.  141, 
§  10,  on  the  ground  that  he  refrained  from  bringing  suit  at  the  sug- 
gestion of  the  administrator,  relying  on  certain  statements  made  in 
good  faith  by  the  administrator.  Powow  River  National  Bank  v. 
Abbott,  179  Mass.  336.  A  creditor  cannot  maintain  his  bill  on  the 
ground  that  he  is  an  alien  residing  in  a  foreign  country,  and  never 
knew  of  the  decease  of  the  debtor  or  the  appointment  of  the  adminis- 
trator until  after  the  two  years  had  expired.  Sykes  i'.  Meacham,  103 
Mass.  285.  And  see  Waltham  Bank  v.  Wright,  8  Allen,  121;  Prentice 
V.  Dehon,  10  Allen,  353;  Richards  v.  Child,  98  Mass.  284;  Spelman  v. 
Talbot,  123  Mass.  489;  Brooks  v.  Rayner,  127  Mass.  2G8;  Grow  v. 
Dobbins,  128  Mass.  271 ;  Hammond  v.  Granger,  128  Mass.  275. 

An  executor  who  holds  money  under  a  will  for  the  purpose  of 
keeping  a  cemetery  lot  of  the  testator  in  a  suitable  condition,  may  be 
ordered  by  the  judge  of  probate  to  deposit  such  money  in  a  savings- 
bank,  in  perpetual  trust,  for  the  uses  mentioned  in  the  will.  Gates 
V.  White,  139  Mass.  353;  Green  v.  Hogan,  153  INIass.  466. 

A  tax   assessed  on  the   personalty  of   a  deceased  person  to  his 


LIMITATION    OF   ACTIONS    AGAINST    EXECUTORS,   ETC.      197 

the  creditor  has  notice  of  the  receipt  of  such  new  assets, 
and  within  two   years  after   they   are    actually  received.^ 

executor  is  the  debt  of  the  latter,  and  so  an  action  to  recover  it  is  not 
barred  by  the  lapse  of  two  years  from  the  notice  of  the  executor's 
appointment.     Dallinger  v.  Davis,  141)  Mass.  62. 

If  the  payee  of  a  note  dies  before  his  right  of  action  on  it  is  barred, 
his  administrator  may  maintain  an  action  on  the  note  against  the 
administrator  of  tlie  maker  of  the  note,  although  the  action  is  not 
brought  until  more  than  two  years  after  the  plaintiff's  appointment  as 
administrator.     Converse  v.  Johnson,  146  Mass.  20. 

A  decree  of  the  probate  court  allowing  distribution  of  all  the 
personal  estate  of  a  deceased  person  before  the  end  of  the  two  years 
of  administration  is  void  as  to  creditors  prosecuting  their  claims 
within  this  period,  whether  they  have  notice  of  it  or  not.  Browne 
V.  Doolittle,  1.51  Mass.  595;  Newell  v.  Peaslee,  151  Mass.  601. 

A  note  given  to  a  third  person  by  a  husband  to  secure  the  payment 
of  money  borrowed  by  him  from  his  wife,  although  assigned  to  the  wife 
during  the  husband's  lifetime,  is  after  his  death  a  valid  debt  against 
his  estate,  and  may  be  enforced.     Spooner  v.  Spooner,  155  Mass.  52. 

Where  the  intestate's  shares  in  a  corporation  are  valuable  property, 
and  liable  to  an  assessment,  it  may  be  the  duty  of  the  administrator 
to  pay  the  assessment,     Ripley  ii.  Sampson,  10  Pick.  371. 

An  administrator  may  not  pay  a  note  secured  by  mortgage  given 
him  by  the  intestate  if  it  is  more  than  six  years  overdue.  He  is 
left  to  his  rights  as  mortgagee.     Grinnell  v.  Baxter,  17  Pick.  381. 

An  administrator  who,  after  representing  the  estate  of  his  intestate 
insolvent,  sells  real  estate  pursuant  to  a  license  from  the  probate 
court,  may  apply  the  proceeds  of  such  sale  to  the  payment  in  full  of 
a  debt  secured  by  mortgage  on  said  real  estate  duly  recorded,  but 
previously  unknown  to  him  and  the  purchaser.  Church  v.  Savage, 
7  Cush.  410;  Morton  v.  Hall,  118  Mass.  511. 

An  administrator  who,  by  verbal  agreement,  has  induced  the  cred- 
itors of  an  estate  not  to  begin  actions  against  the  estate  within  two 


1  R.  L.  c.  141,  §§  9,  10,  11;  Attorney-General  v.  Brigham,  142 
Mass.  249;  Morey  v.  American  Loan  and  Trust  Co.,  149  Mass.  253. 
The  avails  of  real  estate  sold  by  an  administrator  for  payment  of 
debts  after  the  expiration  of  the  two  years  are  not  new  assets.  Chen- 
ery  i'.  Webster,  8  Allen,  76 ;  Alden  v.  Stebbins,  99  Mass.  616 ;  Aiken 
V.  Morse,  104  Mass.  280;  Gould  v.  Camp,  157  Mass.  358. 


198       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

And  if  an  action  seasonably  commenced  fails  of  a  suffi- 
cient service  or  return  by  unavoidable  accident ;  or  when 
the  writ  in  such  action  is  abated  or  defeated  for  a  defect 
in  its  form,  or  by  a  mistake  in  the  form  of  the  proceeding, 
or  when  after  verdict  for  the  plaintiff  judgment  is  arrested; 
or  if  a  judgment  for  the  plaintiff  is  reversed  on  a  writ  of 
error,  —  the  plaintiff  may  commence  a  new  action  for  the 
same  cause  at  any  time  within  one  year  after  the  abate- 
ment or  other  determination  of  the  original  suit,  or  after 
the  reversal  of  the  judgment  therein.^ 

years,  cannot  be  required  to  set  up  the  statute  of  frauds  in  personal 
actions  against  him  on  his  promises.  Ames  v.  Jackson,  115  Mass. 
508. 

A  bill  in  equity,  brought  by  a  bank  against  the  administrator  of 
an  estate  represented  insoh^ent,  seeking  to  have  the  proceeds  of  a  sale 
of  a  seat  in  the  Boston  Stock  Exchange  charged  with  an  express  trust 
by  reason  of  an  assignment  of  the  seat  as  collateral  for  certain  notes 
made  by  the  intestate,  is  not  barred  by  the  short  statute  of  limita- 
tions, althoiigli  the  bill  was  brought  more  than  two  years  after  the 
appointment  of  the  administrator,  and  although  the  right  of  the 
plaintiff  to  bring  suit  upon  the  notes  or  to  prove  it  as  a  debt  of 
the  intestate  before  the  commissioners  appointed  when  the  estate  was 
represented  insolvent,  is  barred.  Nashua  Savings  Bank  v.  Abbott, 
Administrator,  181   Mass. (63  N.  E.  Rep.  1058). 

The  claim  of  an  executor,  having  the  right  to  retain  estate  assets 
sufficient  to  pay  a  debt  due  him,  is  not  subject  to  or  barred  by  R,  L. 
c.  136,  §  9,  providing  that  no  executor  shall  be  held  to  answer  any  suit 
brought  by  a  creditor  of  the  testate  unless  commenced  within  two 
years  from  the  giving  of  the  executor's  bond,  though  the  estate  is  in- 
solvent and  the  executor  has  failed  to  present  his  claim  to  the  court, 
or  though  he  has  not  filed  a  statement  of  his  claim  as  required  by 


1  R.  L.  c.  141,  §  12;  Taft  v.  Stow,  174  Mass.  171.  In  an  action 
brought  against  an  administrator  in  which  judgment  is  recovered 
against  him,  two  executions  should  be  issued,  one  against  the  estate 
of  his  intestate  for  the  damage  only,  and  the  other  for  the  costs 
against  the  administrator  personally.     Look  v.  Luce,  136  Mass.  249. 


LIMITATK^N    OF   ACTIONS   AGAINST   EXECUTORS,   ETC.      199 

Special  administrators  are  not  liable  to.  actions  by  any 
creditor  of  the  deceased  ;  and  the  time  of  limitation  for 
all  suits  against  the  estate  begins  to  run  after  the  issue 
of  letters  testamentary  or  of  administration  in  the  usual 
form,  in  like  manner  as  if  such  special  administration 
had  not  been  granted  ;  but  if  an  appeal  is  taken  from 
the  decree  of  the  probate  court  appointing  an  executor 
or  administrator,  the  time  shall  run  in  like  manner  and 
subject  to  the  same  conditions,  if  the  decree  is  affirmed 
from  the  time  of  the  affirmation  if  the  bond  has  been  filed, 
and  if  not,  from  the  date  of  the  filing  of  the  bond ;  if  the 
decree  is  reversed,  from  the  time  when  an  appointment 
is  finally  made  or  affirmed  and  the  bond  is  filed.^ 

In  the  case  of  a  public  administrator  who  has  given 
a  general  bond  covering  all  estates  on  which  administra- 
tion is  granted  to  him,  the  limitation  begins  to  run,  as  to 
each  estate,  from  the  date  of  letters  of  administration.^ 

A  new  administrator  appointed  on  the  death,  resig- 
nation, or  removal  of  an  executor  or  administrator,  is 
liable   to   the  actions    of    creditors   for   two    years   after 

section  6  in  case  his  claim  is  disputed.  Brown  v.  Greene,  181  Mass. 
(63  N.  E.  Rep.  2). 

A  debtor  of  the  testator,  when  sued  by  the  executor  for  the  amount 
of  tlie  debt,  cannot  set  off  a  debt  due  him  from  the  testator  which 
was  not  pioved  against  the  estate  before  the  two  years  had  expired. 
Tyler  v.  Boyce,  135  Mass.  559. 

The  funeral  expenses  of  a  wife  who  has  left  property,  when  paid  by 
her  husband,  constitute  a  preferred  charge  against  her  estate.  Con- 
stantinides  v.  Walsh,  146  Mass.  281. 

Any  city  or  town  which  incurs  expense  for  the  support  of  a  pauper 
having  a  settlement  therein  may  recover  the  same  against  such  person, 
his  executors  or  administrators,  in  an  action  of  contract  for  money 
paid,  laid  out,  and  expended  for  his  use.  R.  L.  c.  81,  §  9;  Newbury- 
port  i'.  Creedon,  146  Mass.  1-34. 

1  R.  L.  c.  137,  §  15;  Smith  v.  Smith,  175  Mass.  483. 

2  R.  L.  c.  138,  §  9. 


200       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

he  gives  bond,  unless  the  same  were  barred  under  the 
previous  administration.  If  he  fails  to  give  notice  of  his 
appointment  in  the  manner  prescribed  for  original  adminis- 
trators, he  will  have  no  benefit  of  the  statute  limitation. 
If  assets  come  to  his  hands  after  the  expiration  of  the  two 
years,  he  is  liable  on  account  of  such  new  assets  in  like 
manner  as  an  original  executor  or  administrator.^ 

Every  legatee  may  recover  his  legacy  in  an  action  at 
common  law,  and  such  action  may  be  brought  at  any 
time  against  an  executor  or  administrator  with  the  will 
annexed  for  the  recovery  of  a  legacy .^ 

Proceeding  when  the  Creditor  s  Right  of  Action  accrues 
after  the  Two  Years.  —  A  further  exception  to  the  rule 
limiting  actions  against  executors  and  administrators  to 
two  years  after  giving  bond  is  made  by  the  statute  in 
favor  of  a  creditor  whose  right  of  action  does  not  accrue 
within  the  two  years.  A  creditor  holding  such  a  claim 
should  present  a  full  statement  of  it  in  writing  to  the 
probate  court,  with  a  petition  for  an  order  requiring  the 
executor  or  administrator  to  retain  in  his  hands  assets 
sufficient  to  satisfy  it  when  it  becomes  due  and  payable. 
The  claim  may  be  presented  at  any  time  before  the  estate 
is  fully  administered.     If  it  appears  on  examination  that 

1  R.  L.  c.  141,  §§  17,  18  ;  Eddy  v.  Adams,  145  Mass.  489.  The 
time  within  which  an  action  may  be  commenced  against  the  new  ad- 
ministrator is  not  extended  by  his  receivinjif  property  in  settlement  of 
a  suit  against  a  surety  on  the  bond  of  his  predecessor  for  a  faihire  to 
account  for  estate  which  liad  been  inventoried.  Yeazie  v.  Marrett, 
6  Allen,  372  ;  Chenery  v.  Webster,  8  Allen,  76. 

An  action  will  lie  against  the  administrator  de  bonis  non  with  the 
will  annexed  for  a  debt  due  from  the  testator,  although  the  original 
executor,  who  was  also  the  residuary  trustee,  gave  a  bond  to  pay  debts 
and  legacies.     Collins  v.  Collins,  140  Mass.  502. 

2  R.  L.  c.  141,  §  19;  Gale  v.  Nickerson,  151  Mass.  428;  Tallon  v. 
Tallon,  156  Mass.  313. 


LIMITATION    OF   ACTIONS   AGAINST    EXKCUTORS,   ETC.      201 

the  claim  is,  or  may  become,  justly  due  from  the  estate, 
the  court  will  order  the  executor  to  retain  in  his  hands 
assets  sufficient  to  meet  it ;  or  if  a  person  interested 
in  the  estate  offers  to  give  bond  to  the  alleged  creditor, 
with  sufficient  surety  or  sureties,  for  the  payment  of 
the  demand  in  case  it  is  proved  to  be  due,  the  court 
may  order  such  bond  to  be  taken,  instead  of  requiring 
assets  to  be  retained.^  This  proceeding  applies  to  any 
claim  arising  out  of  a  contract  of  the  deceased,  the 
right  of  action  on  which  does  not  accrue  within  the  two 
years.^  If  the  creditor  fails  to  present  his  claim  to  the 
court,  he  cannot  maintain  an  action  against  the  heirs, 
next  of  kin,  devisees,  or  legatees  after  the  estate  has 
been  settled.^  The  application  to  the  court  does  not 
involve  an  inquiry  into  the  amount  of  assets  in  the  execu- 
tor's hands,  but  is  limited  to  the  question  whether  the 
claim  is,  or  may  become,  justly  due  from  the  estate.* 

^  R.  L.  c.  141,  §  13.  This  provision,  so  far  as  it  relates  to  claims 
to  become  due,  does  not  apply  to  or  affect  any  estate  which  was 
not  in  process  of  settlement  on  the  twenty-eighth  day  of  February, 
1879. 

The  statute  does  not  compel  the  administrator  to  sell  real  estate  to 
meet  the  liability  when  it  shall  accrue.  Clark  v.  Ilolbrook,  146  Mass. 
3GG.  A  creditor  of  an  estate  upon  which  ancillary  administration  has 
been  taken  out  here,  is  entitled  to  have  assets  retained  to  satisfy  his 
claim  when  it  shall  accrue.  Xewell  v.  Peaslee,  151  Mass.  601.  A 
claim  of  a  balance  due  a  ward  from  a  guardian  deceased  intestate, 
upon  an  account  filed  by  him  in  his  lifetime,  which  was  not  allowed 
by  the  probate  court  until  more  than  six  years  after  the  taking  out  of 
administration  on  his  estate,  is  within  the  statute.  Cobb  v.  Kempton, 
154  Mass.  266. 

2  The  court  may  order  the  administrator  of  the  estate  of  a  deceased 
surety  on  a  probate  bond  to  retain  assets  to  satisfy  a  claim  of  damages 
for  a  breach  of  the  bond.     Hammond  r.  Granger,  128  Mass.  272. 

8  Pratt  V.  Lamson,  128  Mass.  528;  Bassett  v.  Drew,  176  Mass. 
141. 

*  Hammond  v.  Granger,  131  Mass.  351. 


202  PROCEEDINGS    IN    THE    PliOBATE    COURTS. 

The  decision  of  the  court  upon  the  claim  of  the  creditor 
is  not  conchisive  against  the  executor  or  administrator, 
or  other  persons  interested  to  oppose  the  allowance 
thereof ;  and  they  cannot  be  compelled  to  pay  it,  unless 
it  is  proved  to  be  due  in  an  action  commenced  within 
one  year  after  it  becomes  payable,  or,  if  an  appeal  is 
taken  from  the  decision  of  the  probate  court,  in  an 
action  commenced  within  one  year  after  the  final  de- 
termination of  the  proceedings  on  the  appeal.^ 

A  creditor  wiiose  right  of  action  accrues  after  the 
expiration  of  the  two  years,  and  whose  claim  could  not 
legally  be  presented  to  the  probate  court,  or  whose  claim, 
if  presented,  was  not  allowed,  may,  by  action  commenced 
within  one  year  after  his  right  of  action  accrues,  recover 
his  claim  against  the  heirs  and  next  of  kin  of  the  deceased, 
or  his  devisees  or  legatees,  each  of  whom  shall  be  liable  to 
the  creditor  to  an  amount  not  exceeding  the  value  of  the 
real  or  personal  property  which  he  has  received  from  the 
deceased.  But  if  by  the  will  of  the  deceased  any  part 
of  his  estate  or  any  one  or  more  of  the  devisees  or  legatees 
is  made  exclusively  liable  for  the  debt  in  exoneration 
of  the  residue  of  the  estate  or  of  other  devisees  or  lega- 
tees, such  provisions  of  the  will  shall  be  complied  with, 
and  the  persons  and  estate  so   exempted  shall  be  liable 

1  R.  L.  c.  Ul,  §§  14,  15,  16;  Cobb  v.  Kempton,  154  Mass.  270. 
The  action  is  brought  against  the  executor  if  he  has  been  required  to 
retain  assets  therefor  ;  otherwise,  on  the  bond  given  by  the  persons 
interested.  "  If  the  action  is  brought  on  such  bond,  the  plaintiff  shall 
set  forth  his  original  cause  of  action  against  the  deceased  in  like 
manner  as  would  be  required  in  a  declaration  for  the  same  demand 
against  the  executor  or  administrator,  and  may  allege  the  non-payment 
of  the  demand  as  a  breach  of  the  condition  of  the  bond;  and  tlie  de- 
fendant may  answer  any  matter  of  defence  that  would  be  available  in 
law  against  the  demand  if  prosecuted  in  the  usual  manner  agaiD>t  the 
executor  or  administrator."     R.  L.  c.  141,  §  16. 


PAYMENT  OF  DEBTS  BY  EXECUTORS,  ETC.       203 

for  only  so  much  of  the  debt  as  cannot  be  recovered  from 
those  who  are  first  chargeable  therewith. ^ 

\V7ien  Executors^  etc.,  may  pay  Debts  without  Personal 
Liability. — No  executor  or  administrator  can  be  held  to 
answer  to  a  suit  of  a  creditor  of  the  deceased,  if  com- 
menced within  one  year  after  he  gives  bond,  unless  it 
is  on  a  demand  that  would  not  be  affected  by  the  in- 
solvency of  the  estate,  or  is  brought  after  the  estate 
has  been  represented  insolvent  for  the  purpose  of  ascer- 
taining a  contested  claim.^  And  if,  within  the  year  after 
giving  notice  of  his  appointment,  he  does  not  have  notice 
of  demands  against  the  estate  which  will  authorize  liim 
to  represent  it  insolvent,  he  may  proceed  to  pay  the 
debts  due,  without  any  personal  liability  on  that  ac- 
count to  any  creditor  who  has  not  given  notice  of  his 
claim. 

If  he  pays  away  the  whole  estate  before  notice  of  the 
demand  of  any  other  creditor,  he  is  not  required,  in  con- 
sequence of  such  notice,  to  represent  the  estate  insolvent, 
but  in  an  action  against  him  he  will  be  discharged  upon 
proving  such  payments.  If  he  pays  away  so  much  of  the 
estate  that  the  remainder  is  insufficient  to  pay  a  demand 
of  which  he  afterwards  has  notice,  he  will  be  liable  to  pay 
on  such  demand  only  so  much  as  may  then  remain.  If 
there  are  two  or  more  such  demands,  which  together 
exceed  the  amount  of  assets  remaining  in  his  hands,  he 

1  R.  L.  c.  141,  §§  26-32  ;  Bassett  v.  Granger,  136  Mass.  176 ; 
McKim  V.  Doane,  137  Mass.  195  ;  Clark  v.  Holbrook,  146  Mass.  366 ; 
Forbes  v.  Harrington,  171  Mass.  386. 

2  R.  L.  c.  141,  §  1.  This  provision  includes  an  executor  who  is 
also  a  residuary  legatee,  and  has  given  bond  to  pay  debts  and  legacies. 
'J'he  demands  that  "  would  not  be  affected  by  the  insolvency  of  the 
estate  "  are  such  as  are  preferred  by  statute.  National  Bank  of  Troy 
V.  Stanton,  116  Mass.  439  ;  Studley  v.  Willis,  134  Mass.  155. 


204       PROCEEDINGS  IN  THE  TEOBATE  COURTS. 

may  represent  the  estate  insolvent ;  but  creditors  who 
have  been  previously  paid  are  not  liable  to  refund  any  part 
of  the  amount  received  by  them.^ 

If  it  appears,  upon  the  settlement  of  the  account  of  an 
executor  or  administrator  in  the  probate  court,  that  the 
whole  estate  and  efiects  which  have  come  to  his  hands 
have  been  exhausted  in  paying  the  charges  of  administra- 
tion and  debts  or  claims  entitled  by  law  to  a  preference 
over  the  common  creditors  of  the  deceased,  such  settle- 
ment shall  be  a  sufficient  bar  to  any  action  brought  against 
such  executor  or  administrator  by  a  creditor  who  is  not 

1  R.  L.  c.  141,  §§  1-4  ;  Converse  o.  Johnson,  146  Mass.  22  ; 
Browne  v.  Uoolittle,  151  Mass.  595.  As  to  the  payment  of  debts 
when  the  estate  is  insolvent,  see  chap.  xiii.  More  than  two  years 
after  the  notice  of  his  appointment,  and  after  the  estate  had  been 
represented  insolvent,  the  administrator  found  a  bond  executed  to  the 
intestate  for  the  conveyance  of  land  to  him  on  payment  of  a  certain 
sum.  A  creditor  who  had  not  presented  or  proved  his  claim,  and  who 
had  offered  the  administrator  indemnity  against  costs,  was  held  to 
have  a  right  to  a  judicial  determination  whether  an  equity  of  re- 
demption existed  which  was  new  assets.  Glines  v.  Weeks,  137  Mass. 
547. 

Taxes  on  collateral  legacies  and  successions  shall  be  paid  to  the 
treasurer  of  the  commonwealth  by  the  executors,  administrators,  or 
trustees  at  the  expiration  of  two  years  after  the  date  of  their  giving 
bond;  but  whenever  legacies  or  distributive  shares  shall  be  payable 
within  two  years,  the  taxes  shall  be  payable  at  the  time  such  legacies 
or  shares  are  paid.  But  when  the  probate  court  has  ordered  funds  to 
be  retained  to  satisfy  a  claim  of  a  creditor  whose  right  of  action  does 
not  accrue  within  two  years,  the  payment  of  the  tax  may  be  suspended 
by  an  order  of  the  court  to  await  the  disposition  of  the  claim.  The 
taxes  and  interest  that  may  accrue  shall  be  a  lien  on  the  property 
until  paid.  R.  L.  c.  15,  §  4.  Whenever  the  legatee  or  devisee  who 
has  paid  any  such  tax,  afterwards  refunds  any  portion  of  the  property 
on  which  it  was  paid,  or  it  is  judicially  determined  that  the  whole  or 
any  part  of  the  tax  ought  not  to  have  been  paid,  said  tax  or  the  due 
proportional  part  of  it  shall  be  paid  back  to  him  by  the  executor  or 
trustee.     R.  L.  c.  15,  §  15. 


SURVIVAL    OF    ACTIONS,    SET-OFF,  ETC.  205 

entitled  to  such  preference,  although  the  estate  has  not 
been  represented  insolvent.^ 

All  actions  which  would  have  survived  if  commenced 
by  or  against  the  original  party  in  his  lifetime  may  be 
commenced  and  prosecuted  by  and  against  his  executors 
and  administrators. 

When  an  action  of  tort  is  commenced  or  prosecuted 
against  the  executor  or  administrator  of  the  person  origi- 
nally liable,  the  plaintiff  shall  be  entitled  to  recover  only 
for  the  value  of  the  goods  taken,  or  for  the  damage  actually 
sustained,  without  any  vindictive  or  exemplary  damages, 
or  damages  for  any  alleged  outrage  to  the  feelings  of  the 
injured  party.^ 

In  an  action  by  or  against  an  executor,  administrator, 
or  other  person  in  a  representative  capacity,  the  defendant 
may  set  off  a  claim  due  to  or  from  the  testator,  intestate,  or 
person  represented,  respectively  ;  but  he  shall  not  set  off  a 
claim  due  in  his  own  right  to  or  from  the  executor,  admin- 
istrator, or  other  person  who  sues  or  defends  in  a  represen- 
tative capacity,  nor  a  claim  which  did  not  belong  to  him  at 
the  death  of  the  testator  or  intestate. 

Wlien,  upon  such  a  set-off  against  an  executor  or  admin- 
istrator, a  balance  is  found  due  to  the  defendant,  the  judg- 
ment therefor  against  the  plaintiff  shall  be  in  the  same 

^  R.  L.  c.  141,  §  5.  The  settlement  in  the  probate  court  of  an 
administrator's  account,  showing  that  he  has  exhausted  all  the  estate 
of  his  intestate  in  paying  the  expenses  of  the  last  sickness,  funeral, 
and  administratiou,  is  a  good  defence  to  an  action  brought  against 
the  administrator  on  his  bond,  although  the  administrator  has  suffered 
a  judgment  to  be  recovered  against  him  before  such  settlement  of  his 
account.  Fuller  v.  Connelly,  142  Mass.  227.  But  such  defence  is 
not  available  unless  the  administrator  has  filed  an  inventory  and 
settled  his  account  in  the  probate  court.  McKim  v.  Haley,  173 
Mass.  112. 

2  R.  L.  c.  172,  §§  1,  2;  Wilkins  i'.  Wainwright,  173  Mass.  212. 


206       PROCEEDINGS  IN  THE  PKOBATE  COURTS. 

form    and  have  the  same  effect  as  if   the   suit  had  been 
originallj  commenced  by  the  defendant.^ 

Police,  district,  and  municipal  courts  may  issue  writs  of 
scire  facias  against  executors  and  administrators  upon  a 
suggestion  of  waste,  after  a  judgment  against  them.^ 

PAYMENT   OF  LEGACIES. 

The  probate  court  has  no  jurisdiction  of  the  questions  to 
whom,  or  at  what  time,  a  legacy  is  to  be  paid.  The  exec- 
utor pays  the  legacies  under  the  authority  given  him  by 
the  will  of  the  deceased.^  The  rule  adopted  by  the  courts, 
borrowed  from  the  civil  law,  requires  legacies  to  be  paid, 
when  the  will  prescribes  no  time  for  their  payment,  after 
the  expiration  of  one  year  from  the  testator's  death,  it 
being  presumed  that  the  executor  will  be  able  to  inform 
himself  during  the  year  of  the  sufficiency  or  insufficiency 
of  the  estate  to  meet  the  demands  upon  it ;  and  the  legatee 
may  bring  an  action  to  recover  his  legacy  after  the  expira- 

^  R.  L.  c.  174,  §§  6,  7.  If  the  defendant  prevails,  he  naay  have  an 
execution  for  costs  against  the  executor  de  bonis  propriis,  although  the 
estate  of  the  plaintiff's  testator  has  been  represented  insolvent.  Per- 
kins V.  Fellows,  136  Mass.  294.  See  Gannon  v.  Ruffin,  151  Mass. 
206;  Boyden  v.  Mass.  Life  Insurance  Co.,  153  Mass.  544. 

2  R.  L.  c.  160,  §  21. 

8  When  the  legatee  is  a  minor  and  has  no  guardian,  or  whenever 
the  residence  of  a  person  named  as  a  legatee  is  unknown,  the  court 
may  direct  that  his  legacy  be  deposited  in  some  savings  bank  or  other 
like  institution,  or  invested  in  bank  stock  or  other  stocks.  R.  L. 
c.  150,  §  24. 

If  the  amount  of  a  legacy  has  been  deposited  in  a  savings  bank  by 
order  of  the  Court,  on  the  representation  that  the  residence  of  the 
legatee  is  unknown,  and  it  afterwards  appears  that  the  legatee  died 
before  the  testator  and  that  his  issue  are  entitled  to  it  under  the  pro- 
visions of  P.  S.  c.  127,  §  23  (now  R.  L.  c.  135,  §  21),  the  probate  court 
should  order  the  amount  to  be  paid  to  such  issue.  Stockbridge,  Peti- 
tioner, 145  Mass.  517. 


PAYMENT   OF   LEGACIES.  207 

tion  of  the  year.^  But  if  the  executor  or  administrator 
within  two  years  after  having  given  bond  for  the  discharge 
of  his  trust,  is  required  by  a  legatee  or  next  of  kin  to  make 
payment,  in  whole  or  in  part,  of  a  legacy  or  distributive 
share,  the  probate  court  may  require  that  such  legatee  or 
distributee  shall  first  give  bond  to  the  executor  or  adminis- 
trator, with  surety  or  sureties  to  be  approved  by  the  court, 
and  conditioned  to  repay  the  amount  so  to  be  paid,  or  so 
much  thereof  as  may  be  necessary  to  satisfy  any  demands 
that  may  be  afterwards  recovered  against  the  estate  of 
the  deceased,  and  to  indemnify  the  executor  or  admin- 
istrator against  all  loss  or  damage  on  account  of  such 
payment.  ^ 

A  debt  due  to  the  estate  of  the  deceased  by  a  legatee  or 
distributee  of  such  estate  is  to  be  set  off  against  and 
deducted  from  the  legacy  to  such  legatee  or  from  the 
distributive  share  of  such  distributee.  ^     The  probate  court 

1  Brooks  V.  Lynde,  7  Allen,  64.  A  legatee  of  a  fractional  part  of 
the  residue  of  an  estate  in  process  of  being  administered  in  the  probate 
court  under  a  will,  cannot  in  a  suit  at  law  recover  of  the  administrator 
of  the  estate  of  the  deceased  executor  under  the  will,  the  amount  of 
the  legacy  before  the  amount  of  the  residuum  has  been  ascertained. 
Tallon  V.  Tallon,  150  Mass.  31.'5. 

2  R.  L.  c.  141,  §  20;  Browne  v.  Doolittle,  151  Mass.  598.  The 
probate  court,  pending  a  petition  by  a  party  interested,  for  instruc- 
tions as  to  the  construction  of  a  will,  may  restrain  the  paying' of  lega- 
cies until  the  determination  of  the  questions  involved.  Healy  v.  Reed, 
153  Mass.  197. 

8  R.  L.  c.  141,  §  23.  Gannon  v.  Ruffin,  151  Mass.  204.  See  Taylor, 
V.  Taylor,  145  Mass.  239.  An  agreement  by  an  heir  with  an  adminis- 
trator that  notes  held  by  the  latter  may  be  deducted  from  the  distribu- 
tive share  before  the  final  settlement  of  the  estate,  will  not  amount  to 
payment  of  the  notes.  Taylor  v.  Lewis,  146  Mass  222.  A  gift  by  a 
parent  to  a  child  is  not  to  be  applied  in  satisfaction  of  a  legacy  to  the 
child  given  by  a  will  subsequently  executed  by  tlie  parent,  in  the  ab- 
sence of  any  understanding  by  the  child  that  it  should  be  so  applied. 


20S       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

hears  and  determines  as  to  the  validity  and  amount  of  any 
such  debt,  and  may  make  all  decrees  and  orders  wliich 
may  be  necessary  or  proper  to  carry  into  effect  such  set-off 
or  deduction.^ 

Jaques  V.  Swasey,  153  Mass.  596.  Administrators  or  executors  cannot 
set  off  against  or  deduct  from  a  devise  or  inherited  share  of  real  estate 
a  debt  due  to  tlie  estate.     Jones  v.  Treadwell,  109  Mass.  430. 

1  R.  L.  c.  141,  §  23.  Bhickler  v.  Boott,  114  Mass.  24  ;  Boyden  v. 
Mass.  Life  Insurance  Co.,  153  Mass.  544.  A  debt  due  from  a  legatee 
which  is  barred  by  the  statute  of  limitations  at  the  time  of  the  testa- 
tor's death,  cannot  be  deducted  from  the  legacy,  unless  the  will  clearly 
shows  such  an  intention.     Allen  v.  Edwards,  136  Mass.  138. 

An  executor,  administrator,  or  trustee  holding  property  subject  to 
the  tax  on  collateral  legacies  and  successions,  shall  deduct  the  tax  or 
shall  collect  it  from  the  legatee  or  person  entitled  to  said  propei'ty,  and 
he  shall  not  deliver  property  or  a  specific  legacy  subject  to  the  tax  to 
any  person  until  he  has  collected  the  tax  thereon.  An  executor  or  ad- 
ministrator shall  collect  taxes  due  upon  land  which  is  subject  to  said 
tax  from  the  heirs  or  devisees  entitled  thereto  and  he  may  be  author- 
ized to  sell  said  land  if  they  refuse  or  neglect  to  pay  said  tax. 

When  a  legacy  subject  to  the  tax  is  charged  upon  or  payable  out  of 
real  estate,  the  heir  or  devisee,  before  paying  it,  shall  deduct  the  tax 
therefrom  and  pay  it  to  the  executor,  administrator,  or  trustee,  and 
the  tax  shall  remain  a  charge  upon  the  real  estate  until  it  is  paid;  and 
the  payment  of  it  may  be  enforced  by  the  executor,  administrator,  or 
trustee  in  the  same  manner  as  the  payment  of  the  legacy  itself  could 
be  enforced. 

If  any  such  legacy  is  given  in  money  to  any  person  for  a  limited 
period,  the  administrator,  executor,  or  trustee  shall  retain  the  tax  on 
the  whole  amount ;  but  if  it  is, not  in  money,  he  shall  make  applicar 
tion  to  the  court  having  jurisdiction  of  his  accounts  to  render  an  ap- 
portionment, if  the  case  requires  it,  of  the  sum  to  be  paid  into  his 
hands  by  the  legatee  on  account  of  the  tax,  and  for  such  further  orders 
as  the  case  may  require.     R.  L.  c.  15,  §§  5,  6,  7. 

When  any  person  bequeaths  or  devises  any  property  to  father, 
mother,  husband,  wife,  lineal  descendant,  brother,  sister,  an  adopted 
child,  the  lineal  descendant  of  any  adopted  child,  the  wife  or  widow 
of  a  son,  or  the  husband  of  a  daughter,  during  life  or  for  a  term  of 
years,  and  the  remainder  to  a  collateral  heir  or  to  a  stranger  to  the 
blood,  the  value  of  the  prior  estate  shall,  within  three  months  after 


INTEREST   ON   LEGACIES.  209 

Interest  on  Legacies.  —  Interest  is  generally  allowed  to 
legatees  after  the  expiration  of  one  year  from  the  death  of 
the  testator,  and  the  rule  applies  when  the  will  "directs  the 
legacy  to  be  paid  "  as  soon  as  possible,"  or  "  next  after 
my  lawful  debts."  ^  If  the  legacy  is  payable  by  the  terms 
of  the  will  at  a  specified  time,  it  carries  interest  from  that 
time.2 

If  an  annuity,  or  the  use,  rent,  income,  or  interest  of 
property,  real  or  personal,  is  given  by  will,  deed,  or  other 
instrument  to  or  in  trust  for  the  benefit  of  a  person  for  life 
or  until  the  happening  of  a  contingency,  such  person  shall 
be  entitled  to  receive  and  enjoy  the  same  from  and  after 
the  death  of  the  testator,  unless  it  is  otherwise  provided  in 
such  will  or  instrument  ;^  and  if  the  income  is  not  paid  at 
the  expiration  of  the  year,  to  interest  thereon  from  that 
time.*  A  person  entitled  to  such  annuity,  rent,  interest, 
or  income,  or  his  representative,  shall  have  the  same  appor- 
tioned if  his  right  or  interest  therein  terminates  between 
the  days  upon  which  it  is  payable,  unless  otherwise  provided 
in  such  will  or  instrument ;  but  no  action  shall  be  brought 

the  date  of  giving  bond  by  the  executor,  administrator,  or  trustee,  be 
appraised  and  deducted  from  the  appraised  value  of  such  property,  and 
the  remainder  shall  be  subject  to  a  tax  of  five  per  centum  of  its  value. 
Ibid.  §  2. 

1  Kent  V.  Dunham,  106  Mass.  586;  Webster  v.  Hale,  8  Ves.  410; 
Ogden  V.  Pattee,  149  Mass.  82;  Welch  v.  Adams,  152  Mass.  74. 

2  The  legatee  is  entitled  to  interest  although  the  administrator  had 
not,  at  the  time  the  legacy  was  payable,  assets  available  for  the  pay- 
ment of  debts  and  charges  of  administration  of  the  estate.  Kent  v. 
Dunham,  106  Mass.  586. 

3  R.  L.  c.  141,  §  24 ;  Pollock  v.  Learned,  102  Mass.  49 ;  Sargent  v. 
Sargent,  103  Mass.  297  ;  Billings  v.  Billings,  110  Mass.  225;  Gushing 
V.  Burrell,  137  Mass.  25;  Keith  v.  Copeland,  138  Mass.  304  ;  Adams 
V.  Adams,  139  Mass.  452. 

*  Ayer  v.  Ayer,  128  Mass    575. 

14 


210       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

therefor  until  the  expiration  of  the  period  for  which  the 
apportionment  is  made.  ^ 

When  it  is  the  duty  of  the  executor,  under  the  directions 
of  the  will,  to  invest  and  hold  the  amount  of  a  legacy  for 
a  prescribed  time,  or  until  the  happening  of  a  contingent 
event,  and  he  neglects  to  do  so,  the  legatee  may  be  entitled 
to  compound  interest.  ^  A  specific  legacy  carries  with  it 
all  income  or  accessions  that  may  accrue  thereon  after  the 
death  of  the  testator. 

1  R.  L.  c.  141,  §  25.  Holmes  v.  Taber,  9  Allen,  246;  Granger  v. 
Bassett,  98  Mass.  462  ;  Sargent  v.  Sargent,  103  Mass.  297  ;  Haraden 
V.  Larrabee,  113  Mass.  430;  White  v.  Stanfield,  146  Mass.  424;  Hem- 
euway  v.  Hemenway,  171  Mass.  42. 

The  words  "  annuity,  rent,  interest,  or  income  "  do  not  include 
undeclared  dividends  of  corporations.  Adams  v.  Adams,  139  Mass. 
452. 

2  Miller  V.  Congdon,  14  Gray,  114;  Eliott  v.  Sparrell,  114  Mass. 
404  ;  Kent  v.  Dunham,  106  Mass.  586;  Welch  v.  Adams,  152  Mass.  86. 


CHAPTER   XIII. 

INSOLVENT  ESTATES   OF   DECEASED  PEKSONS. 

When  the  estate  of  a  person  deceased  is  insufficient  to 
pay  all  his  debts,  it  shall,  after  discharging  the  necessary 
expenses  of  his  funeral  and  last  sickness,  and  the  charges 
of  administration,  be  applied  to  the  payment  of  his  debts, 
which  shall  include  equitable  liabilities,  in  the  following 
order : — 

"  First,  Debts  entitled  to  a  preference  under  the  laws  of 
the  United  States ; 

"  Second,  Public  rates,  taxes,  and  excise  duties ; 

"  Third,  Wages  or  compensation,  to  an  amount  not 
exceeding  one  hundred  dollars,  due  to  a  clerk,  servant,  or 
operative  for  labor  performed  within  one  year  next  preced- 
ing the  death  of  such  deceased  person,  or  for  such  labor  so 
performed  for  the  recovery  of  payment  for  which  a  judg- 
ment has  been  rendered ; 

"  Fourth,  Debts  due  to  all  other  persons. 

"  If  there  is  not  enough  to  pay  all  the  debts  of  any  class, 
the  creditors  of  that  class  shall  be  paid  ratably  upon  their 
respective  debts ;  and  no  payment  shall  be  made  to  cred- 
itors of  any  class  until  all  those  of  the  preceding  class  or 
classes,  of  whose  claims  the  executor  or  administrator  has 
notice,  have  been  fully  paid."  ^ 

1  R.  L.  c.  142,  §  I  ;  Sweeney  v.  Muldoon,  139  Mass.  307. 

A  husband,  having  paid  the  funeral  expenses  of  his  wife,  who  has 
left  property,  may  recover  them  of  her  executor.  Constantides  v. 
Walsh,  146  Mass.  281 ;  Morrissey  v.  Mulhern,  168  Mass.  412. 


212  PROCEEDINGS   IN    THE    PROBATE   COUKTS. 

THE   REPRESENTATION    OF   INSOLYENCY. 

If  the  estate  is  insolvent  it  is  the  duty  of  the  executor 
or  administrator  to  represent  the  fact  to  the  probate  court. 
His  neglect  to  do  so  may  make  him  personally  liable  to 
creditors  of  the  deceased.  He  is  allowed  ample  time  to 
satisfy  himself  as  to  the  condition  of  the  estate.  He  is 
not  held  liable  to  answer  to  the  suit  of  any  creditor  com- 
menced within  one  year  after  he  gives  bond  for  the  faith- 
ful discharge  of  his  trust,  unless  the  demand  is  one  that 
would  not  be  affected  by  the  insolvency  of  the  estate,  or  is 
brought  after  the  estate  has  been  represented  insolvent  for 
the  purpose  of  ascertaining  a  contested  claim.^  If  within 
one  year  after  giving  notice  of  his  appointment  he  does 
not  have  notice  of  demands  which  will  authorize  him  to 
represent  the  estate  insolvent,  he  may  proceed  to  pay  the 
debts  due  from  the  estate  ;  and  he  will  not  be  personally 
liable  to  any  creditor  in  consequence  of  payments  made 
before  notice  of  his  demand.  If  he  so  pays  away  the 
whole  of  the  estate  before  notice  of  the  demand  of  any 
other  creditor,  he  is  not  required  in  consequence  of  such 
notice  to  represent  the  estate  insolvent,  but  may  plead 
that  he  has  fully  administered,  and  be  discharged  on 
proving  such  payments. ^     Or  if  any  effects  remain,  and 

1  R.  L.  c.  141,  §  1 ;  Greenleaf  v.  Allen,  127  Mass.  248 ;  Converse  v. 
Johnson,  14G  Mass.  22;  Browne  v.  Doolittle,  151  Mass.  595.  But  he  is 
accountable  for  money  paid  on  debts  within  the  year,  though  without 
the  knowledge  that  the  estate  was  insolvent.  Cobb  v.  Muzzey,  13 
Gray,  57.  In  case  the  estate  has  Feen  represented  insolvent,  the  whole 
amount  of  the  judgment  against  the  administrator,  including  costs  as 
well  as  debts,  is  to  be  certified  to  the  judge  of  probate,  and  added  to 
the  list  of  claims  reported  by  the  commissioners  of  insolvency.  Healy 
V.  Root,  11  Rick.  389. 

2  R.  L.  c.  141,  §§  2,  3  ;  Gushing  v.  Field,  9  Met.  180;  Fuller  v.  Con- 
nelly,  142  Mass.  228 ;  Browne  v.  Doolittle,  supra.     It  is  no  bar  to  aa 


INSOLVENT   ESTATES   OF   DECEASED   PERSONS.  213 

such  remainder  is  insufficient  to  satisfy  a  demand  of  which 
he  afterwards  has  notice,  he  is  liable  to  pay  only  so  much 
as  may  then  remain ;  if  there  are  two  or  more  such 
demands,  '  which  together  exceed  the  amount  of  assets 
remaining,  he  may  then  represent  the  estate  insolvent, 
and  pay  over  the  amount  in  his  hands  to  such  persons  as 
the  court  shall  order  ;  but  creditors  who  have  been  pre- 
viously paid  cannot  be  required  to  refund  any  part  of  the 
amount  received  by  them.^ 

action  against  an  administrator,  on  a  debt  of  his  intestate,  that  he 
gave  due  notice  of  his  appointment,  and  had  no  notice  within  a  year 
thereafter  of  demands  against  the  estate  which  would  authorize  him 
to  represent  it  insolvent,  and  applied  in  payment  of  the  debts  of  the 
deceased  all  the  personal  and  a  sufficient  portion  of  the  real  estate  to 
pay  the  debts  then  ascertained;  and  that  the  heirs  at  the  same  time 
sold  all  the  residue  of  the  real  estate;  and  the  administrator  rendered 
his  final  account,  which  was  allowed.  The  statute  applies  only  when 
the  whole  of  the  estate  has  been  exhausted.  Hildreth  v.  Marshall, 
7  Gray,  167  ;  Bassett  v.  Granger,  136  Mass.  174. 

1  R.  L.  c.  141,  §  4;  Colegrove  v.  Robinson,  11  Met.  238  ;  Heard  v. 
Drake,  4  Gray,  510.  This  provision  of  the  statute  applies  to  payments 
made  after  the  expiration  of  the  year.  If  the  executor,  within  a  year 
after  giving  notice  of  his  appointment,  pays  a  debt  of  his  intestate,  he 
may,  if  the  estate  afterwards  proves  insolvent,  recover  of  the  creditor 
the  excess  of  the  sum  so  paid  over  the  amount  awarded  to  the  cred- 
itor by  commissioners  of  insolvency.  Walker  r.  Hill,  17  Mass.  380; 
Bliss  i;.  Lee,  17  Pick.  83;  Heard  v.  Drake,  4  Gray,  514;  Richards  v. 
Nightingale,  9  Allen,  149.  The  administrator  cannot  recover  unless 
he  proves  the  insolvency  of  the  estate  by  a  commission  of  insolvency 
regularly  issued,  executed,  and  returned,  and  a  dividend  declared  by 
the  court.  Bascom  v.  Butterfield,  1  Met.  530;  Flint  r.  Valpey,  130 
Mass.  385.  The  general  statute  of  limitations  will  begin  to  run 
against  the  claim  of  the  administrator  from  the  date  when  the  divi- 
dend is  ordered.  Richards  v.  Nightingale,  9  Allen,  149.  A  decree  of 
the  probate  court  allowing  distribution  of  all  the  personal  estate  of  a 
deceased  person  before  the  end  of  the  two  years  of  administration,  is 
void  as  to  creditors  prosecuting  their  claims  within  that  period,  whether 
they  have  notice  of  it  or  not;  and  the  administrator  has  no  defence 
to  actions  by  such  creditors.  Browne  v.  Doolittle,  151  Mass.  595; 
Newell  V.  Peaslee,  151  Mass.  601. 


214       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  executor  or  administrator  is  not  to  wait  until  the 
claims  of  creditors  are  proved  at  law  before  he  makes  his 
representation  of  insolvency.     He  may  believe  tliat  there 
is  a  good  defence  against  a  claim  that  is  presented  to  him  ; 
but  if  its  recovery  would  cause  insolvency,  he  should  repre- 
sent the  estate  insolvent.     If  he  suffers  judgment  to  be 
recovered   against   him    before    he   represents   the   estate 
insolvent,  he  must  pay  the  full  amount  of  the  judgment, 
without    regard   to   tlie    amount   of  assets  in  his  hands.  ^ 
And  if,  on  demand  made  upon  him  to  pay  such  judgment, 
or  to  show  property  of  the  deceased  to  be  taken  in  execu- 
tion, he  neglects  or  refuses  so  to  do,  he  and  his  sureties 
are  liable  on  his  administration    bond  to  a  suit   by    the 
judgment  creditor,  although  the  estate  is  in  fact  insolvent. 
Having  had  full  opportunity  to  ascertain  the  condition  of 
the  estate,  and  having  allowed  the  claim  to  be  prosecuted 
to  final  judgment  without  interfering  by  a  representation 
of  insolvency,  the  law  will  presume  that  he  has  the' means 
in  his  hands  to  satisfy  it.  ^ 

If  it  appears,  upon  the  settlement  of  the  account  of  an 
executor  or  administrator  in  the  probate  court,  that  the 
whole  estate  and  effects  which  have  come  to  his  hands 
have  been  exhausted  in  paying  the  charges  of  administra- 
tion and  debts  or  claims  entitled  by  law  to  a  preference 
over  the  common  creditors  of  the  deceased,  such  settle- 
ment shall  be  a  bar  to  an  action  brought  against  him  by  a 
creditor  who  is  not  entitled   to  such  preference,  although 

1  To  a  scire  facias  against  an  administrator  to  have  execution  of  a 
former  judcrment  recovered  against  him  in  that  capacity,  he  may  plead 
the  insolvency  of  the  estate  of  his  intestate,  as  established  since  the 
recovery.  Coleman  v.  Hall,  12  Mass.  570  ;  Fuller  v.  Connelly,  142 
Mass.  227. 

2  Newcomb  v.  Gos3,  1  Met.  333.  But  see  Fuller  v.  Connelly,  142 
Mass.  230. 


INSOLVENT   ESTATES   OF   DECEASED   PERSONS.  215 

tlie  estate  has  not  been  represented  insolvent.  ^  But  the 
executor  or  administrator  who  undertakes  to  pay  the  pre- 
ferred claims  without  first  making  a  representation  of 
insolvency,  must  pay  them  strictly  in  the  order  prescribed 
by  statute.  Tiie  assets  may  not  be  sufficient  to  pay  all  the 
preferred  debts,  and  in  such  case  the  several  classes  of 
creditors  must  be  paid  in  their  order.  Taxes,  for  instance, 
cannot  be  paid  until  the  two  anterior  classes  of  creditors 
have  been  fully  satisfied ;  and  if  the  assets  are  not  suffi- 
cient to  pay  all  the  debts  of  any  one  class,  the  creditors 
of  that  class  must  be  paid  ratably.  An  executor  who 
is  residuary  legatee,  and  who  has  given  bond  to  pay  the 
debts  and  legacies,  cannot  represent  the  estate  insol- 
vent, —  the  bond  is  a  conclusive  admission  of  sufficient 
assets.2 

The  representation  of  insolvency  must  be  addressed  to 
the  probate  court  in  the  county  in  which  the  executor  or 
administrator  was  appointed,  and  should  set  forth  the 
amount  of  the  indebtedness  of  the  estate,  so  far  as  it  can 
be  ascertained  (including  the  funeral  expenses,  charges  of 
administration,  and  the  allowance,  if  any,  made  to  the 
widow  or  minor  children),  and  the  amount  of  the  assets  in 
the  hands  of  the  executor  or  administrator.  There  should 
also  be  filed  a  list  of  the  claims  against  the  estate,  show- 
ing the  name  of  each  creditor  and  the  sum  claimed  by 
each.  If  the  evidence  of  the  fact  of  insolvency  is  satis- 
factory, the  court  may  appoint  two  or  more  fit  persons 
to  be  commissioners  to  receive  and  examine  the  claims 


1  R.  L.  c.  141,  §  5;  Glines  v.  Weeks,  137  Mass.  551;  Fuller  v. 
Connelly,  142  Mass.  228;  Eddy  u.  Adams,  145  Mass.  490;  Browne 
V.  Doolittle,  151  Mass.  597. 

"^  Alger  i;.  Colwell,  2  Gray,  404;  Jones  v.  Richardson,  5  Met. 
247. 


216       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

of    creditors,   or    may   itself    receive    and    examine    the 
claims.^ 

TIME   ALLOWED    FOR   PROOF   OF   CLAIMS. 

If  commissioners  are  appointed,  six  months  after  their 
appointment  are  allowed  for  the  creditors  to  present  and 
prove  their  claims.  If  the  claims  are  examined  by  the 
court,  six  months  after  the  order  of  the  court  directing 
the  executor  to  give  notice  to  creditors  of  the  times  and 
places  of  the  examination  are  allowed.  The  court  may  in 
all  cases,  if  it  appears  that  a  just  and  equitable  distribu- 
tion of  the  estate  requires  it,  allow  such  further  time,  not 
exceeding  eighteen  months  from  the  original  appointment 
or  order,  as  it  may  deem  proper.^  Such  further  time 
may  be  applied  for  by  any  creditor  who  has  failed, 
after  using  due  diligence,  to  present  his  claim  for  proof  ;  ^ 
and  the  commission  may  be  reopened  for  the  purpose 
of   correcting   a    mistake    of   the    commissioners,*  or  for 

1  R.  L.  c.  142,  §§  2,  4;  Curley  v.  Squire,  141  Mass.  509,  511;  Newell 
V.  West,  149  Mass.  528.  Where  a  judge  of  probate  had  rejected  a 
representation  of  insolvency  made  by  an  administrator,  and  upon  a 
second  application,  which  the  administrator  offered  to  support  by  legal 
evidence,  again  refused  to  receive  it,  giving  his  former  decision  as  a 
reason  for  the  second  denial,  and  an  appeal  was  taken,  he  was  directed 
to  receive  the  evidence,  and  thereupon  to  decree  according  to  law  and 
the  justice  of  the  case.  Bucknam  v.  Phelps,  6  Mass.  448.  No  appeal 
lies  from  a  decree  of  the  probate  court  appointing  such  commissioners. 
Putney  v.  Fletcher,  140  Mass.  596. 

The  commissioners,  or,  in  case  the  court  examines  the  claims,  the 
executor  or  administrator,  must  notify  the  creditors  of  the  times 
■when  and  the  places  where  their  claims  will  be  examined.  R.  L. 
c.  142,  §§  3,  5. 

2  R.  L.  c.  142,  §  9 ;  Guptill  v.  Ayer,  149  Mass.  50. 

"  Walker  v.  Lyman's  Administrators,  6  Pick.  458 ;  Towle  v.  Ban- 
nister, 16  Pick.  255. 

*  Towle  r.  Bannister.  16  Pick.  254;  Franklin  County  Bank  v. 
Greenfield  Bank,  138  Mass.  522. 


INSOLVENT    ESTATES   OF   DECEASED    PERSONS.  217 

other  good  cause.  The  application  sliould  fully  set 
forth  the  facts  of  the  case.  The  commission  may  be  re- 
opened at  any  time  within  the  eighteen  months,  although 
the  return  of  the  commissioners  may  have  been  made  to 
the  probate  court ;  and  the  party  applying  for  such  exten- 
sion may  appeal  from  a  decree  of  the  court  denying  the 
prayer  of  his  petition.  And  in  case  of  an  appeal  from  the 
disallowance,  in  whole  or  in  part,  or  from  the  allowance  of 
a  claim,  further  time  may  be  allowed,  not  extending  more 
than  one  month  beyond  the  final  decision  of  the  appeal.  ^ 
And  if  a  commissioner  dies,  resigns,  or  unreasonably  neg- 
lects to  make  the  return  required  by  law,  or  is  removed,  a 
new  commissioner  may  be  appointed  in  his  stead,  and  in 
such  case  the  time  for  making  proof  of  claims  is  extended 
six  months  from  the  appointment  of  the  new  commissioner.  ^ 
Such  extensions  of  time,  however,  do  not  relieve  a  cred- 
itor from  the  obligation  to  commence  the  prosecution  of  his 
claim,  either  at  law  or  before  commissioners,  within  two 
years  from  the  time  when  bond  was  given  by  the  adminis- 
trator. If  proceedings  are  not  commenced  within  that  time, 
his  claim  will  be  barred,  unless  it  can  be  proved  as  a  con- 
tingent claim,  or  unless  new  assets  come  to  the  hands  of 
the  administrator  after  the  decree  of  distribution,  in  which 
case  his  claim  may  be  allowed  and  paid  in  the  manner  pro- 
vided for  contingent  claims.^     And  even  if  there  are  new 

1  R.  L.  c.  142,  §  9.  2  Ibid. 

8  The  question  whether  further  assets  have  come  into  the  hands  of 
an  executor  or  administrator,  so  as  to  entitle  a  creditor  to  have  the 
commission  of  insolvency  opened,  is  not  open  to  inquiry  on  an  appeal 
from  the  decision  of  the  commissioners  allowing  or  disallowing  the 
claim  of  a  creditor.     Ostrom  v.  Curtis,  1  Cush.  461. 

More  than  two  years  after  his  appointment,  and  after  the  estate  had 
been  represented  insolvent,  the  administrator  first  discovered  the  exist- 
ence of  a  bond  executed  to  the  intestate,  by  the  terms  of  which  the 


218       TROCEEDINGS  IN  THE  PEOBATE  COURTS. 

assets,  his  claim  will  not  be  taken  out  of  the  statute  of  limi- 
tation for  general  purposes,  but  only  in  respect  to  the  new 
assets.  ^ 

The  commissioners  cannot  allow  claims  after  the  expira- 
tion of  the  time  limited  by  statute  or  fixed  by  the  court.  ^ 

PROOF    OF    CLAIMS. 

The  warrant  issued  to  the  commissioners  contains  in- 
structions for  their  formal  proceedings.  They  must  first 
be  sworn  to  faithfully  discharge  the  duties  of  their  office. 
The  oath  may  be  administered  by  any  justice  of  the  peace, 
and  a  certificate  thereof  should  be  made  by  him  on  the 
warrant,  to  be  returned  with  their  report.  They  are  re- 
quired to  appoint  convenient  times  and  places  for  their 
meetings  to  receive  and  examine  claims,  and  to  give  at  least 
seven  days'  written  notice  of  the  time  and  place  of  each 
meeting,  by  mail  or  otherwise,  to  all  known  creditors  of  the 
deceased,  and  such  other  notice,  by  publishing  in  some  news- 
paper or  otherwise,  as  the  court  may  order.  ^  The  execu- 
tor or  administrator  is  required  to  furnish  them,  fourteen 
days  at  least  before  their  first  meeting,  the  names  and  resi- 
dences of  all  known  creditors.     The  commissioners  hold  as 

obligor  was  to  reconvey  land  to  the  intestate  on  payment  of  a  certain 
sum.  It  was  held,  that  the  creditor  had  a  right  to  tlie  judicial  deter- 
mination of  the  question  whether  an  equity  of  redemption  existed 
which  would  be  new  assets.     Glines  v.  Weeks,  137  Mass.  547. 

1  Aiken  v.  Morse,  104  Mass.  277  ;  Tarbell  v.  Parker,  106  Mass.  347  ; 
Glines  v.  Weeks,  137  Mass.  547.  But  leaving  claims  with  the  register 
of  probate,  and  his  indorsement  thereon  that  they  were  presented  for 
allowance  within  two  years  from  the  filing  of  the  administrator's  bond, 
is  equivalent  to  bringing  suit,  and  avoids  the  bar  of  the  special  statute 
of  limitations.     Robinson  v.  Robinson,  173  Mass.  233. 

8  Bascom  v.  Butterfield,  1  Met.  536. 

«  R.  L.  c.  142,  §  3. 


INSOLVENT   ESTATES    OF   DECEASED    PERSONS.  219 

many  meetings,  within  the  six  months,  as  are  necessary  for 
the  complete  discharge  of  the  trust  committed  to  them. 

The  commissioners  or  the  court  may  require  any  claimant 
to  make  true  answers,  under  oath,  to  all  questions  relating 
to  his  claim ;  and  if  he  refuses  to  take  such  oath,  or  to 
answer  fully  all  questions,  they  may  disallow  his  claim. 
Either  of  the  commissioners  may  administer  such  oath 
to  the  claimants  and  witnesses.  The  probate  court  may, 
except  while  an  appeal  is  pending  in  the  superior  court  or 
in  the  supreme  judicial  court  from  the  allowance  or  the 
disallowance  of  a  claim,  upon  the  application  of  the  execu- 
tor or  administrator,  examine  upon  oath  any  person  whose 
claim  has  been  allowed,  unless  such  allowance  has  been 
made  by  the  supreme  judicial  court  or  by  the  superior  court 
on  appeal,  may  summon  any  person  to  give  evidence  rela- 
tive to  such  claim,  and,  upon  notice,  alter  or  expunge  a 
claim  which  it  finds  is  founded  wholly  or  partially  in  fraud, 
illegality,  or  mistake.  ^ 

The  commissioners  are  to  liquidate  and  balance  all 
mutual  demands  subsisting  between  the  deceased  insolvent 
and  his  creditors.  If  the  balance  is  found  in  favor  of  the 
creditor,  it  should  be  allowed  by  the  commissioners,  and 
included  in  their  report ;  but  if  the  balance  is  found  to 
be  against  the  creditor,  it  is  not  a  subject  of  their  report, 
which  is  to  include  claims  against  the  estate  only. ^ 

1  R.  L.  c  142,  §§  7,  8. 

2  When  the  defendant  in  a  suit  brought  by  the  administrator  of  an 
insolvent  estate  files  in  set-off  a  claim  larger  than  that  on  which  he  is 
sued,  he  is  entitled  to  judgment  for  the  balance,  and  need  not  present 
his  claim  to  the  commissioners.  The  judgment  is  to  be  presented  to 
the  judge  of  probate,  and  by  him  added  to  the  claims  allowed  by  the 
commissioners.  Bigelow  v.  Folger,  2  Met.  255.  In  such  suit  the 
defendant  may  set  off  a  note  which  falls  due  pending  the  suit,  though 
not  due  when  the  action  was  commenced.  Ibid.  ;  Boy  den  v.  Mass. 
Life  Insurance  Co.,  153  Mass.  548. 


220       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Copartnership  debts  for  which  the  deceased  was  liable 
may  be  proved  against  his  estate.  ^ 

A  claim  payable  absolutely  may  be  proved  before  its 
maturity ,2  and  contingent  liabilities  which  become  absolute 
debts  at  any  time  before  being  presented  to  the  commis- 
sioners may  be  allowed.  ^ 

^  A  stipulation  in  partnership  articles  that  in  case  of  the  decease 
of  either  partner  the  business  may  be  carried  on  for  one  year  by  the 
survivor  for  the  mutual  benefit  of  both  parties,  does  not,  in  case  of  the 
death  of  one  partner,  justify  the  allowance  against  his  insolvent  estate 
of  a  debt  contracted  by  the  survivor  within  the  year,  with  one  who 
had  notice  of  the  death.  Stanwood  v.  Owen,  14  Gray,  195;  Bacon  v. 
Ponieroy,  104  Mass.  585.  Payments  made  by  the  surviving  partner 
while  carrying  on  the  partnership  business  pursuant  to  such  stipula- 
tion, upon  an  account,  some  items  of  which  were  contracted  before, 
and  some  after,  the  death  of  the  other  partner,  must  be  applied  to  the 
discharge  of  the  first  items.  Ibid.  A  surviving  partner  may  prove  a 
claim  against  the  estate  of  his  deceased  partner.  Sparhawk  v.  Russell, 
10  Met.  307. 

2  Haverhill  Loan  and  Fund  Association  v.  Cronin,  4  Allen,  141. 

8  A  lessor  is  entitled  to  prove  his  claim  for  rent  becoming  payable 
by  the  terms  of  the  lease  before  or  after  the  death  of  the  lessee,  up  to 
the  time  the  claim  is  presented  to  the  commissioners,  but  not  for  rent 
payable  in  the  future.  Deane  v.  Caldwell,  127  Mass.  242 ;  Bowditch  v. 
Raymond,  146  Mass.  114.  And  see  Wilby  v.  Phinney,  15  Mass.  116  ; 
Harding  v.  Smith,  11  Pick.  478;  Savage  v.  Winchester,  15  Gray,  453. 

One  having  a  right  of  action  against  the  representative  of  a  deceased 
sheriff  whose  estate  is  represented  insolvent,  for  the  misfeasance  of  the 
sheriff,  must  prosecute  his  claim  before  the  commissioners  and  obtain 
a  decree  of  the  judge  of  probate  in  his  favor  in  order  to  entitle  him  to 
a  remedy  on  the  bond  given  by  the  sheriff  for  the  faithful  performance 
of  his  duties  ;  and  he  cannot  maintain  an  action  at  law,  except  in  the 
cases  provided  by  the  law  respecting  insolvent  estates.  Todd  v.  Brad- 
ford, 17  Mass.  567. 

An  administrator  de  bonis  non  with  the  will  annexed  may  prove 
before  the  commissioners  of  an  insolvent  estate  of  an  intestate  a  claim 
for  the  amount  received  by  the  intestate  as  executor  from  the  sale  of 
real  estate  belonging  to  the  estate  of  the  testator  and  not  accounted 
for.     ]\Iinot  i'.  Norcross,  143  Mass.  326. 

A  ward  after  coming  of  age  is  not  entitled  to  prove  against  the 


INSOLVENT    ESTATES    OF   DECEASED    PERSONS.  221 

When  judgment  is  rendered  against  an  estate  which  has 
been  represented  insolvent,  and  a  certified  copy  from  the 
probate  court  is  filed  in  the  clerk's  office,  execution  will 
not  be  issued  on  the  judgment,  and  it  may  be  presented 
for  allowance  in  the  same  manner  as  other  claims  of 
creditors.^ 

A  creditor  whose  claim  is  secured,  or  partly  secured,  by 
mortgage  or  otherwise,  cannot  prove  his  full  claim  before 
the  commissioners  unless  he  first  surrenders  his  security 
for  the  benefit  of  the  estate.  But  he  may  be  allowed  the 
balance  of  his  claim  remaining  after  deducting  the  value  of 
the  security.  Such  value  may  be  determined  by  agreement 
bctweeu  the  creditor  and  executor,  or  by  a  sale  of  the 
security,  or  it  may  be  estimated  by  the  commissioners.  ^ 

estate  in  insolvency  of  his  guardian  a  claim  for  the  property  which 
came  into  the  hands  of  the  guardian  until  the  latter  has  settled  his 
account  in  the  probate  court,  or  until  a  judgment  has  been  obtained 
on  his  bond.  ISIurray  v.  Wood,  144  Mass.  195.  See  Thorndike  v. 
Hinckley,  155  Mass.  265. 

1  R,  L.  c.  142,  §  32;  Putney  y.  Fletcher,  148  Mass.  248;  Gold- 
thwait  V.  Day,  149  Mass.  187;  Boyden  v.  Mass.  Life  Insurance  Co.,  153 
Mass.  548.     But  see  Perkins  v.  Fellows,  136  Mass.  294. 

2  Farnura  c.  Boutelle,  13  Met.  159  ;  Hooker  i;.  Olmstead,  6  Pick. 
481 ;  Middlesex  Bank  v.  Minot,  4  Met.  325;  Haverhill  Loan  and  Fund 
Association  v.  Cronin,  4  Allen,  144 ;  Bristol  County  Savings  Bank  v. 
AVoodward,  137  Mass.  412. 

But  tliis  rule  does  not  apply  to  a  case  where  the  collateral  security 
was  furnished  by  a  third  person  not  primarily  responsible  for  the  debt. 
A  widow  who  has  joined  with  her  husband  in  a  mortgage  of  her  sepa- 
rate estate  to  secure  his  debt,  which  she  has  paid  since  his  death  for 
the  purpose  of  exonerating  her  estate,  may  prove  the  amount  before 
the  commissioners.  And  a  creditor  may  prove  his  debt  without 
first  surrendering  a  mortgage  of  the  separate  estate  of  the  debtor's 
wife,  which  he  holds  as  security.  Savage  v.  Winchester,  15  Gray, 
453. 

For  a  full  discussion  of  the  subject  of  proof  of  a  claim  against  an 
insolvent  estate  by   a  creditor  holding  security,   and  of  the  circum- 


222       PEOCEEDINGS  IN  THE  PROBATE  COURTS. 

Interest  is  to  be  allowed  on  all  claims  expressly  bearing 
interest,  and  upon  claims  not  expressly  bearing  interest 
where  there  is  evidence  establishing  the  creditor's  right  to 
receive  interest.  Upon  claims  not  bearing  interest  and  not 
matured  a  rebate  of  interest  is  to  be  made.  The  common 
practice  is  to  compute  this  allowance  and  rebate  of  interest 
to  the  date  of  the  death  of  the  intestate.  Except  in  very 
rare  cases,  it  is  immaterial  whether  the  interest  stops  at  the 
death  of  the  debtor  or  at  a  later  day  in  the  settlement  of 
the  estate,  inasmuch  as  the  proportion  in  which  the  assets 
are  distributed  among  the  creditors  will  be  the  same  by 
either  mode  of  computation.  The  main  object  is  to  fix 
upon  some  date  to  which  the  affairs  of  the  deceased  shall 
be  adjusted.  But  cases  have  occurred  where  the  assets 
have  proved  more  than  sufficient  to  pay  the  debts  a3  they 
existed  at  the  time  of  the  death  of  the  insolvent,  but  not 
sufficient  to  pay  them  with  interest  computed  to  the  time  of 
the  decree  of  distribution.  In  such  cases,  and  whenever 
the  equitable  distribution  of  the  assets  requires  it,  the  court 
will  add  interest  on  the  claims  allowed  to  the  time  of 
distribution.  ^ 

It  is  the  duty  of  the  executor  or  administrator  to  oppose 
the  allowance  of  all  claims  improperly  presented  to  the 
commissioners.     If  he  is  guilty  of  corrupt  conduct  in  not 

stances  under  which  the  creditor  can  prove  for  the  whole  amount  of 
his  claim,  see  Hale  v.  Leatherbee,  175  Mass.  547. 

P,  the  maker  of  a  promissory  note,  gave  E,  after  his  indorsement 
thereof,  a  promissory  note  as  collateral  security,  which  was  to  apply 
to  a  renewal  of  the  original  note.  The  original  note  was  three  times 
renewed,  but  before  the  last  renewal  note  fell  due  P  died.  Although 
the  bank  which  discounted  this  note  had  proved  it  against  the  iusol- 
vent  estate  of  P,  it  was  held  that  E  could  also  prove  the  note  given  to 
him  by  P.     Emerson  v.  Paine,  176  Mass.  391. 

^  Williams  v.  American  Bank,  4  Met.  317;  Bowers  v.  Hammond, 
139  Mass.  360. 


INSOLVENT   ESTATES    OF   DECEASED    PERSONS.  223 

opposing  the  allowance  of  illegal  claims,  he  will  be  liable 
to  an  action  on  his  bond.^  He  should  be  present  at  the 
meetings  of  the  commissioners,  and  should  take  an  appeal 
from  their  decision  whenever  an  appeal  is  necessary  to 
protect  the  rights  of  persons  interested  in  the  estate. 

The  claim  of  an  executor  or  administrator  against  the 
estate  which  he  administers  should  be  presented  for  allow- 
ance to  the  probate  court,  not  to  the  commissioners.^ 

RETURN   OF  THE   COMMISSIONERS. 

At  the  expiration  of  the  time  limited  for  the  proof  of 
claims,  the  commissioners  are  required  by  law  to  make 
their  returns  to  the  probate  court,^  and  performance  of  that 
duty  may  be  compelled,  on  motion  of  any  party  interested, 
by  the  order  of  the  court  which  appointed  them.*  Their 
return  must  give  a  list  of  all  the  claims  presented  to  them, 
whether  allowed  or  not,  with  the  sum  allowed  on  each, 
stated  in  separate  classes,  as  follows :  first,  debts  entitled 

1  Parsons  v.  Mills,  2  Mass.  80. 

2  Green  v.  Russell,  132  Mass.  536;  Newell  v.  West,  149  Mass.  528. 
An  action  cannot  be  brought  on  a  claim  disallowed  by  the  commis- 
sioners before  they  have  made  their  return.  Ellsworth  v.  Thayer, 
4  Pick.  122;  Goff  v.  Kellogg,  18  Pick.  256.  An  administrator  who 
has  resigned  his  trust  is  not  to  apply  to  the  commissioners  in  insol- 
vency to  prove  a  debt  due  him  personally  from  the  estate  when  its 
amount  may  depend  entirely  upon  the  relation  in  which  he  stands  to 
the  estate,  but  must  present  his  claim  to  the  probate  court.  Newell 
V.  West,  supra. 

3  It  is  the  duty  of  the  commissioners  to  make  their  own  return  to 
the  probate  court.  It  is  no  part  of  the  official  duty  of  the  administra- 
tor to  receive  the  report  of  the  commissioners  and  carry  or  send  it  to 
the  judge  of  probate;  if  he  receives  the  repoit  and  undertakes  to 
return  it,  this  is  merely  a  personal  engagement,  for  the  performance 
of  which  the  sureties  in  his  bond  are  not  bound.  Nelson  v.  Wood- 
bury, 1  Greenl.  251. 

4  Blanchard  i-.  Allen,  116  Mass.  447. 


224       PROCEEDINGS  IN  THE  PRORATE  COURTS. 

to  a  preference  under  the  laws  of  the  United  States ;  sec- 
ond, public  rates,  taxes,  and  excise  duties  ;  third,  preferred 
debts  due  to  clerks,  servants,  or  operatives  for  labor  ;  fourth, 
debts  due  to  all  other  persons.  Debts  proved  against  the 
deceased  as  a  member  of  a  partnership  firm  must  be  stated 
in  a  separate  list. 

If  the  claims  are  examined  by  the  court,  the  register 
makes  and  certifies  a  list  of  all  claims  presented,  with  the 
amount  allowed  or  disallowed  on  each  claim.^ 

If  the  executor  or  administrator  has  settled  his  accounts 
in  the  probate  court,  the  final  distribution  of  the  balance 
in  his  hands  may  be  ordered  after  the  expiration  of  thirty 
days  from  the  return  of  the  commissioners,  and  the  settle- 
ment of  the  estate  completed,  unless  there  are  contingent 
debts  which  could  not  be  proved  before  the  commissioners, 
or  unless  an  appeal  is  taken  from  some  decision  of  the 
commissioners  or  of  the  court. 

PROVISIONS   AS   TO    CONTINGENT   CLAIMS. 

The  statute  provides  that  "if  at  the  expiration  of  the 
time  allowed  for  the  proof  of  claims  a  person  is  liable  as 
a  surety  for  the  deceased,  or  has  any  other  contingent 
claim  against  his  estate  which  could  not  be  proved  as  a 
debt  within  said  time,  the  court  upon  proof  of  such  facts 
shall,  in  ordering  a  dividend,  leave  in  the  hands  of  the 
executor  or  administrator  a  sum  sufficient  to  pay  to  such 
contingent  creditor  a  proportion  equal  to  what  is  then  to 
be  paid  to  the  other  creditors.  If  such  contingent  debt 
becomes  absolute  within  four  years  after  the  time  of  the 
giving  of  the  executor's  or  administrator's   bond,  it   may 

1  R.  L.  c.  142,  §  4 ;  Putney  v.  Fletcher,  140  Mass.  596 ;  Newell  v. 
West,  149  Mass.  528. 


INSOLVENT  ESTATES  OF  DECEASED  PERSONS.     225 

be  proved  before  the  probate  court,  before  the  commis- 
sioners already  appointed,  or  before  others  to  be  appointed 
for  the  purpose  by  the  court.  Upon  the  allowance  of  such 
claim  the  creditor  shall  be  entitled  to  a  dividend  thereon 
equal  to  what  has  been  paid  to  the  other  creditors,  so  far 
as  the  same  can  be  paid  without  disturbing  the  former 
dividend;  and  if  the  claim  is  not  finally  established,  or  if 
the  dividend  upon  it  does  not  exhaust  the  assets  in  the 
hands  of  the  executor  or  administrator,  the  residue  of  the 
assets  shall  be  divided  among  all  creditors  who  have  proved 
their  debts.  If  there  is  a  surplus  after  satisfying  the  claims 
of  such  creditors,  with  interest,  it  shall  be  distributed  to 
the  persons  legally  entitled  thereto."  ^ 

These  provisions  of  the  statute  apply  only  to  cases  where 
the  claim  is  one  that  could  not  be  proved  as  a  debt  under 
the  commission.  The  surety  on  a  promissory  note  made 
by  the  deceased  which  has  been  proved  against  the  estate  by 
the  person  holding  it  cannot  have  such  a  contingent  claim. 
His  claim  against  the  estate  could  have  been  proved  by  him. 
He  could  have  paid  the  holder,  made  the  note  his  own 
property,  and  proved  it  as  his  own  claim.  Moreover,  the 
holder  who  proved  the  note  will  take  the  entire  dividend 
upon  it,  and  the  claim,  so  far  as  the  insolvent  estate  is  con- 
cerned, will  be  extinguished  by  the  dividend  paid  to  him. 
The  surety  cannot  also  take  a  dividend  on  the  same  debt. 
The  statute  refers  to  cases  where  the  holder  of  the  debt 
cannot,  from  some  cause,  prove  his  debt  under  the  commis- 
sion, or  where  the  surety  cannot  make  the  debt  his  own 
by  payment.^ 

1  R.  L.  c.  142,  §§  27-29. 

2  Cummings  v.  Thompson,  7  Met.  132.  The  possible  liability  of 
surviving  partners  of  a  deceased  insolvent  to  pay  notes  and  obligations 
given  by  him  in  the  name  of  the  firm  without  their  knowledge,  for  his 

15 


226  PROCEEDINGS   IN   THE   PROBATE  •  COURTS. 

APPEALS    FROM    DECISIONS   OP   THE   COMMISSIONERS. 

The  determination  of  the  commissioners  or  of  the  pro- 
bate court  is  not  necessarily  conclusive  in  any  case.  Any 
person  whose  claim  is  disallowed  in  whole  or  in  part,  and 
the  executor  or  administrator,  or  any  heir,  legatee,  devisee, 
or  creditor  of  the  insolvent  estate  who  is  dissatisfied  with 
the  allowance  of  a  claim,  may  appeal  from  the  decision  of 
the  commissioners  or  of  the  probate  court,  and  the  claim 
will  thereupon  be  determined  at  common  law  in  the  county 
in  which  the  probate  or  administration  was  granted.  If 
the  demand  exceeds  the  sum  of  four  thousand  dollars  in 
the  county  of  Suffolk,  or  one  thousand  dollars  in  any  other 
county,  the  appeal  is  taken  either  to  the  supreme  judicial 
court  or  to  the  superior  court ;  otherwise  to  the  superior 
court.^  The  appeal  must  be  claimed  and  notice  thereof 
given  at  the  registry  of  probate  within  thirty  days  after 
the  return  of  the  commissioners,  or,  when  the  court  itself 
receives  and  examines  the  claims,  within  thirty  days  after 
the  allowance  or  rejection  of  the  claim.^  If  the  appeal  is 
by  an  executor  or  administrator,  he  must  give  notice  thereof 
to  the  creditor  within  said  thirty  days.  No  reasons  of 
appeal   are   required   to   be   filed.^    The  appeal   must   be 

private  use,  does  not  give  them  a  contingent  claim  against  the  estate. 
French  v.  Hayward,  16  Gray,  512.  And  see  Sears  v.  Wills,  7  Allen, 
430,  and  Spelman  v.  Talbot,  123  Mass.  489. 

^  A  claim  against  an  insolvent  estate  of  a  deceased  person  pending 
in  a  state  court  on  appeal  from  the  decision  of  the  commissioners  ap- 
pointed by  the  probate  court  cannot  be  removed  to  a  United  States 
court.     Du  Vivier  v.  Hopkins,  116  Mass.  12.5. 

2  R.  L.  c.  142,  §§  11,  12.  When  the  time  for  proof  of  claims  is 
extended,  an  appeal  from  a  decision  of  the  commissioners  disallowing 
the  claim  of  a  creditor  may  be  filed  within  thirty  days  after  their  final 
return,  though  such  claim  was  presented  and  disallowed  before  the 
first  return  of  the  warrant.     Merriam  v.  Leonard,  6  Cush.  151. 

3  Jacobs  v.  Jacobs,  110  Mass.  229. 


INSOLVENT  ESTATES  OF  DECEASED  PERSONS.     227 

entered  on  the  first  Monday  of  the  calendar  month  next 
succeeding  the  expiration  of  the  thirty  days/ 

At  the  term  of  court  at  which  the  appeal  is  entered,  the 
supposed  creditor  must  file  a  statement  in  writing  of  his 
claim,  setting  forth  briefly  and  distinctly  all  the  material 
facts  which  would  be  necessary  in  a  declaration  for  the 
same  cause  of  action  ;  and  like  proceedings  are  thereupon 
had  in  the  pleadings,  trial,  and  determination  of  the  cause 
as  in  an  action  at  law  prosecuted  in  the  usual  manner, 
except  that  no  execution  is  awarded  against  the  executor 
or  administrator  for  a  debt  found  due  to  the  claimant.'^ 
The  appellate  court  has  the  same  power  as  the  probate 
court  or  the  commissioners  to  examine  the  claimant,  and 
the  final  judgment  is  conclusive,  and  the  list  of  debts  al- 
lowed by  the  commissioners  will  be  altered  if  necessary 
to  conform  thereto.^ 

The  party  prevailing  upon  the  appeal  is  entitled  to 
costs,  which,  if  recovered  against  the  executor  or  admin- 
istrator, may  be  allowed  to  him  in  his  administration 
account.* 

The  statute  provides  that  any  person  whose  claim  is 
disallowed    by    the    commissioners,    and    who    for   other 

^  R.  L.  c.  142,  §  12. 

2  But  an  execution  against  the  executor  for  costs  will  nevertheless 
be  awarded.  Greenwood  v.  McGilvray,  120  Mass.  516;  Perkins  v. 
Fellows,  136  Mass.  296. 

'  R.  L.  c.  142,  §  13.  The  report  of  the  commissioners  on  a  claim 
is  conclusive  on  either  party  who  does  not  give  notice  of  his  dissatisfac- 
tion with  it.  Bordmau  v.  Smith,  4  Pick.  212.  See  Wright  v.  Dun- 
ham, 9  Pick.  37. 

*  R.  L.  c.  142,  §  15;  Pierce  v.  Saxton,  14  Pick.  274;  Perkins  v. 
Fellows,  supra.  If  the  creditor,  on  appeal,  does  not  recover  a  sum 
greater  than  that  allowed  by  the  commissioners,  the  executor  shall 
recover  his  costs  of  suit  against  such  creditor.  Dodge  v.  Breed,  13 
Mass.  537. 


228       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

cause  than  his  own  neglect  omits  to  claim  or  prosecute 
his  appeal  as  above  stated,  may,  by  petitioning  the  supreme 
judicial  court  holden  in  any  county,  be  allowed  to  claim 
and  prosecute  his  appeal  upon  such  terms  as  the  court 
shall  impose,  if  it  appears  that  justice  requires  a  further 
examination  of  his  claim ;  but  such  petition  must  be 
presented  within  two  years  after  the  return  of  the  com- 
missioners, and  within  four  years  after  the  date  of  the 
administration  boud.^  The  petition  in  such  case  should 
set  forth  particularly  the  nature  of  the  claim  and  the 
cause  of  the  petitioner's  omission  to  seasonably  claim 
and  prosecute  his  appeal. 

The  allowance  of  such  appeal  shall  not  disturb  any  dis- 
tribution ordered  before  notice  of  the  petition  or  of  the 
intention  to  present  the  same  has  been  given  in  writing  at 
the  registry  of  probate,  or  to  the  executor  or  administrator  ; 
but  the  debts  thus  proved  and  allowed  are  paid  only  out 
of  such  assets  as  remain  in  or  come  to  the  hands  of  the 
executor  or  administrator  after  payment  of  the  sums  pay- 
able on  such  prior  decree  of  distribution.^  The  party  who 
intends  to  petition  for  leave  to  prosecute  his  appeal  should 
therefore  give  immediate  notice  at  the  registry  of  probate, 
or  to  the  executor,  of  his  intention  to  present  the  same. 
The  effect  of  such  notice,  if  distribution  has  not  already 
been  ordered,  may  be  to  materially  increase  the  amount  of 
his  dividend. 

WAIVER    OF   APPEAL,    AND    ARBITRATION. 

After  the  claiming  of  an  appeal  from  a  decision  of  the 
commissioners,  the  parties  may  waive  a  trial  at  law,  and 
submit  the  claim  to  the  determination  of  arbitrators  to  be 
agreed  on  between  them  and  appointed  accordingly  by  the 

1  R.  L.  c.  142,  §  16.  2  Ibid.  §  17. 


INSOLVENT   ESTATES    OF   DECEASED    PERSONS.  229 

probate  court,  and  thereupon  the  appeal  sliall  not  be 
entered.  The  award  of  such  arbitrators,  if  accepted  by 
the  court,  shall  be  as  conclusive  as  a  judgment  in  a  court 
of  common  law.^ 

The  executor  and  the  creditor,  if  they  agree  to  submit 
the  claim  to  arbitration,  should  join  in  a  written  represen- 
tation of  the  fact  to  the  court,  and  state  therein  the  names 
of  the  arbitrators  agreed  upon.  The  arbitrators  must 
notify  the  parties  of  the  time  and  place  fixed  for  the  hear- 
ing, and  after  the  hearing  return  to  the  court  their  award, 
with  the  rule  and  any  papers  issued  therewith.  They  should 
also  return  a  certificate  of  the  costs  of  the  arbitration. 

The  arbitrators  have  no  power  to  award  that  the  claim- 
ant is  in  fact  indebted  to  the  estate.  They  are  to  find  only 
what  amount,  if  any,  is  due  from  the  estate  to  the  claimant.^ 

DISTRIBUTION    OF   INSOLVENT   ESTATES. 

After  the  expiration  of  the  time  allowed  by  section  12 
of  chapter  142  of  the  Revised  Laws  for  claiming  appeals 
from  the  allowance  or  disallowance  of  a  claim,  the  probate 
court  decrees  the  distribution  of  tlie  assets  in  the  hands 
of  the  executor  among  the  creditors  whose  claims  have  been 
allowed.^  If  before  making  the  decree  the  court  has  notice 
of  an  appeal  then  claimed  or  pending,  the  decree  may  be 
suspended  until  the  determination  of  the  appeal,  or  a  dis- 
tribution may  be  ordered  among  the  creditors  whose  debts 
are  allowed,  leaving  in  the  hands  of  the  executor  or  admin- 
istrator a  sum  sufficient  to  pay  the  claimant  whose  demand 
is  disputed  a  proportion  equal  to  that  of  the  other  creditors.* 

1  R.  L.  c.  142,  §  14. 

2  Gihnore  v.  Hubbard,  12  Cush.  220. 

2  Equitable  liabilities  shall  be  deemed  to  be  debts  provable  against 
insolvent  estates  of  deceased  persons.     R.  L.  c.  142,  §  1. 

*  R.  L.  c.  142,  §  18.     As  to  whether  a  decree  of  distribution  can  be 


230       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  court  may,  at  any  time  before  the  expiration  of  the 
time  allowed  for  claiming  appeals,  in  its  discretion  order 
dividends  paid  to  creditors  whose  claims  have  been  allowed, 
whenever  the  court  may  deem  it  proper,  leaving  in  the  hands 
of  the  executor  or  administrator  a  sum  sufficient  to  pay 
claims  that  may  probably  be  proved  a  proportion  equal  to 
what  is  so  paid  to  the  other  creditors.^ 

If  the  whole  assets  are  not  distributed  upon  the  first 
decree,  or  if  further  assets  come  to  the  hands  of  the  exec- 
utor or  administrator,  the  probate  court  will  make  such 
further  decrees  for  distribution  as  the  case  requires.^ 

No  final  distribution  can  be  made  until  the  accounts  of 
the  executor  or  administrator  are  settled  in  the  probate 
court,  and  the  sum  to  be  distributed  thereby  ascertained. 
His  accounts  should  be  settled  at  the  earliest  day  practi- 
cable after  the  i-eturn  of  the  commissioners  or  the  list  of 
claims  allowed  by  the  court  is  made,  and  he  may  be  liable 
on  his  bond  for  neglect  in  this  particular.  The  statute 
provides  that  if  an  executor  or  administrator  neglects  to 
render  and  settle  his  accounts  in  the  probate  court  within 
six  months  after  the  final  determination  of  the  claims  of 
creditors,  or  within  such  further  time  as  the  court  may 
allow,  and  thereby  delays  a  decree  of  distribution,  such 
neglect  may  be  deemed  unfaithful  administration  ;  and  he 
may  be  forthwith  removed,  and  shall  be  liable  in  a  suit  on 
his  bond  for  all  damages  occasioned  by  his  default.^  The 
return  of  the  commissioners,  without  any  appeal  therefrom, 
is  a  final  determination  of  the  claims  of  creditors  within 

amended  for  error  arising  from   mistake,  see  Parker  v.  Townsend 
National  Bank,  121  Mass,  565. 

1  R.  L.  c.  142,  §  19. 

2  Ibid.  §  20  ;  ^Vhite  v.  Swain,  3  Pick.  365. 
«  R.  L.  c.  142,  §  26. 


INSOLVENT   ESTATES   OF   DECEASED   PERSONS.  231 

the  meaning  of  the  statute,  and  the  fact  that  contingent 
ckiims  are  presented  against  the  estate  is  not  material. ^ 

In  muiiing  the  distribution,  the  preferred  creditors,  if 
the  assets  are  sufficient,  are  paid  in  full,  in  the  order 
required  by  statute.  If  there  is  not  enough  to  pay  all  the 
debts  of  any  one  class,  the  creditors  of  that  class  are  paid 
ratably  upon  their  respective  debts.  The  balance  remain- 
ing after  the  payment  of  the  preferred  claims  is  distributed 
ratably  among  the  other  creditors.  If  the  deceased  had 
been  a  member  of  a  copartnership,  and  died  in  possession 
of  both  separate  and  partnership  estate,  and  was  indebted 
as  a  partner  as  well  as  on  private  account,  his  partnership 
debts  are  payable  from  the  partnership  estate,  and  his 
separate  debts  from  his  separate  estate.  If  there  is  a 
balance  of  the  separate  estate  after  the  payment  of  his 
separate  debts,  it  is  added  to  the  joint  property  for  the 
payment  of  the  joint  creditors.  If  there  is  a  balance  of 
the  joint  property  after  the  payment  of  the  joint  debts,  it 
is  divided  among  the  separate  estates  of  the  partners  accord- 
ing to  their  respective  interests  therein,  as  it  would  have 
been  if  the  partnership  had  been  dissolved  without  insol- 
vency ;  and  the  sum  so  appropriated  to^  the  separate  estate 
of  each  partner  is  applied  to  the  payment  of  his  separate 
debts.2 


1  McKim  V.  Bartlett,  129  Mass.  226. 

2  R.  L.  c.  142,  §  21 ;  c.  163,  §  138;  Howe  v.  Lawrence,  9  Cush. 
553;  Fall  River  Whaling  Co.  v.  Borden,  10  Cush.  458;  Jewett  v. 
Phillips,  5  Allen,  120;  Broadway  Nat.  Bank  v.  Wood,  165  Mass,  312  ; 
Clarke  v.  Stanwood,  166  Mass.  379  ;  Very  v.  Clarke,  177  Mass.  52. 

The  holder  of  a  partnership  note  made  payable  to  one  partner  and 
indorsed  by  him  to  the  holder  may  prove  it  in  insolvency  against  the 
estates  both  of  the  firm  and  of  the  indorsing  partner  before  any  divi- 
dend is  declared  on  either.  Roger  Williams  Nat.  Bank  v.  Hall,  160 
Mass.  171. 


232       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  order  of  distribution  directs  the  executor  or  ad- 
ministrator to  pay  the  balance  in  his  hands  to  the  persons 
named  in  the  order,  and  specifics  the  sum  to  which  each 
is  entitled.  He  is  also  directed  to  give  notice  to  each 
creditor  of  the  amount  of  his  dividend,  and  if  any  of  the 
sums  which  he  is  ordered  to  pay  remain  for  six  months 
unclaimed,  to  deposit  the  same  in  a  savings-bank  or  other 
like  institution  in  the  name  of  the  judge  of  probate  for  the 
time  being,  to  accumulate  for  the  benefit  of  the  person 
entitled  thereto.^ 

When  the  executor  or  administrator  has  paid  over  or 
deposited  the  money  in  his  hands  as  required  by  the 
decree  of  distribution,  he  may  perpetuate  the  evidence 
thereof  by  presenting  to  the  probate  court,  within  one  year 
after  the  decree  was  made,  on  account  of  such  payments, 

1  When  the  person  entitled  to  the  money  deposited  satisfies  the 
judge  of  his  right  to  receive  the  same,  the  judge  causes  it  to  be  paid 
over  and  transferred  to  him.  R.  L.  c.  150,  §  28.  The  interest  of  a  dis- 
tributee in  money  ordered  by  the  probate  court  to  be  paid  to  him,  is 
equitable  only  ;  consequently  unclaimed  money  deposited  in  the  name 
of  the  judge  of  probate  cannot  be  reached  by  trustee  process  as  the 
property  of  the  distributee.     Chase  v.  Thompson,  153  Mass.  H. 

When  the  residence  of  a  legatee  is  unknown,  or  if  he  is  a  minor 
without  a  legal  guardian,  the  legacy  may  be  deposited  in  a  savings- 
bank  or  like  institution  in  the  name  of  the  judg6  of  probate.  R.  L. 
c.  150,  §  ■2i. 

The  limitation  of  the  amount  which  savings-banks  may  receive  for 
deposit  does  not  apply  to  deposits  made  by  direction  of  the  probate 
court.  R.  L.  c.  113,  §  25.  Such  deposits  shall  draw  interest  at  the 
same  rates  as  other  deposits  in  the  same  bank,  without  regard  to  the 
amount  deposited;  and  the  probate  court  may  order  money  so  depos- 
ited and  remaining  unclaimed  for  more  than  five  years  to  be  paid  into 
the  state  treasury.     R.  L.  c.  113,  §  55. 

The  judge  of  probate  may  order  money  remaining  unclaimed  for 
twenty  years  to  be  paid  to  the  residuary  legatees,  or  if  there  are  none, 
to  the  parties  entitled ;  but  a  bond  of  indemnity  will  be  required  from 
the  person  to  whom  the  money  is  paid.     R.  L.  c.  150,  §  26. 


INSOLVENT   ESTATES    OF    DECEASED    PERSONS.  233 

which,  being  proved  to  the  satisfaction  of  the  court  and 
verified  by  the  oath  of  the  party,  is  allowed  as  liis  final 
discharge.  He  may  conveniently  make  such  account  by 
returning  the  original  decree,  with  the  receipts  of  the 
several  creditors  and  the  certificates  of  deposit  annexed 
thereto,  together  with  his  own  certificate  that  the  several 
payments  have  been  made  as  ordered. 

After  twenty  years  from  the  decree  of  distribution  of 
an  insolvent  estate,  the  probate  court,  on  application  of 
any  creditor  whose  claim  was  proved  and  allowed,  and 
after  notice  of  such  application  publislied  for  not  less  than 
two  years  on  such  days  as  the  court  shall  direct,  in  one  or 
more  newspapers  of  the  count}',  may  order  any  unclaimed 
dividends  with  the  interest  received  thereon,  after  deduct- 
ing all  expenses  and  charges  of  administration  since  the 
decree  of  distribution,  to  be  distributed  anew  among  the 
creditors  who  have  received  their  dividends.  If  there  is 
a  surplus  after  satisfying  the  claims  of  such  creditors 
with  interest,  it  will  be  distributed  to  the  heirs  of  the 
deceased.  If  a  creditor  who  has  failed  to  receive  his 
dividend  is  deceased,  administration  may  be  granted  on 
his  estate,  although  more  than  twenty  years  have  elapsed 
since  his  death,  and  his  administrator  may  receive  and 
administer  the  dividend.^ 

ACTIONS   BY   CREDITORS    AFTER   THE   REPRESENTATION   OF 
INSOLVENCY. 

After  the  representation  of  insolvency  and  the  appoint- 
ment of  commissioners,  the  law  will  not  permit  any  of  the 
assets  of  the  estate  to  be  taken  from  the  executor  or  ad- 
ministrator by  legal  process  to  satisfy  the  demand  of  any 
creditor,  until  the  question  of  insolvency  is  determined. 
1  R.  L.  c.  142,  §§  24,  25. 


234       PROCEEDINGS  IN  THE  PEOBATE  COURTS. 

No  action  can  be  maintained  unless  for  a  demand  entitled 
to  a  preference,  and  which  would  not  be  affected  by  the 
insolvency  of  the  estate,  or  unless  the  assets  prove  more 
tlian  insufficient  to  pay  all  the  debts  allowed  by  the  com- 
missioners. If  the  estate  is  represented  insolvent  while 
an  action  is  pending  for  any  demand  not  entitled  to  such 
preference,  the  action  can  be  discontinued  without  pay- 
ment of  costs  ;  or,  if  the  demand  is  disputed,  the  action 
may  be  tried  and  determined,  and  judgment  rendered 
thereon,  in  the  same  manner  and  with  the  same  effect  as 
in  the  case  of  an  appeal  from  the  allowance  or  disallowance 
of  the  claim  of  a  creditor ;  or  the  action  may  be  continued 
without  costs  until  it  appears  whether  tlie  estate  is  insol- 
vent, and,  if  not  insolvent,  the  plaintiff  may  prosecute  the 
action  as  if  no  such  representation  had  been  made.^ 

RECOVERY  OF  CLAIMS  NOT  PROVED  BEFORE  THE 
COMMISSIONERS. 

Every  creditor  of  an  insolvent  estate  who  does  not  pre- 
sent his  claim  for  allowance  will  be  barred  from  recovering 
it,  unless  further  assets  come  to  the  hands  of  the  executor  or 
administrator  after  the  decree  of  distribution  ;  in  such  case 
his  claim  may  be  proved  and  paid  in  the  manner  and  with 
the  limitations  provided  for  contingent  debts.^    When  such 

1  R.  L.  c.  142,  §  30;  Gushing  v.  Field,  9  Met.  180;  Johnson  v. 
Ames,  6  Pick.  330;  Hunt  v.  Whitney,  4  Mass.  624;  Greenwood  v. 
McGilvray,  120  Mass.  516;  Greenleaf  v.  Allen,  127  Mass.  248;  Guptill 
V.  Ayer,  149  Mass.  50. 

2  R.  L.  c.  142,  §  10;  Guptill  v.  Ayer,  supra.  The  statute  does  not 
apply  to  a  bill  in  equity  brought  by  the  administrator  of  a  deceased 
partner  whose  estate  is  afterwards  declared  insolvent,  against  his 
surviving  partner  for  an  account ;  and  the  defendant  is  entitled  to 
a  decree  if  a  balance  is  found  in  his  favor.  Goldthwait  v.  Day,  149 
Mass.  185. 


INSOLVENT  ESTATES  OF  DECEASED  PERSONS.     235 

further  assets  come  to  the  estate,  the  probate  court,  on 
application  of  such  creditor,  may  open  the  commission. 
The  creditor's  petition  must  allege  that  further  assets  have 
come  to  the  hands  of  the  executor  or  administrator,  aud  he 
must  substantiate  this  allegation  by  proof.  Without  such 
proof  the  commission  will  not  be  opened.  Either  the  cred- 
itor or  executor  may  appeal  from  the  decree  of  the  probate 
court  allowing  or  refusing  the  prayer  of  the  petition.^ 

The  claim  of  a  creditor  in  whose  favor  the  commission 
is  reopened  is  not  barred,  in  consequence  of  the  lapse  of 
time  subsequent  to  the  closiug  of  the  first  commission,  by 
any  of  the  statutes  of  limitation.  He  may  proceed  by  peti- 
tion whenever  there  are  new  assets  to  be  distributed.  The 
executor  or  administrator  is  liable  to  account  for  all  funds 
in  his  hands,  though  he  may  have  received  them  more 
than  twenty  years  after  the  decree  of  distribution  was 
passed.2 

If  after  the  report  of  the  commissioners  the  assets  prove 
sufficient  to  pay  all  debts  allowed,  the  executor  or  admin- 
istrator pays  them  in  full ;  and  if  any  other  debt  is  after- 
wards recovered  against  him,  he  is  liable  therefor  only  to 
the  extent  of  the  assets  then  remaining.  If  there  are  two 
or  more  such  creditors,  the  assets,  if  insufficient  to  pay 
them  in  full,  are  divided  between  them  in  proportion  to 
their  debts.  The  executor  or  administrator,  in  an  action 
brought  against  him  on  such  demand,  may  prove  the 
amount  of  assets  in  his  hands,  and  thereupon  judgment 
will  be  rendered  in  the  usu;jl  form  ;  but  execution  will  not 

^  The  decree  if  not  appealed  from  is  conclusive,  and  cannot  be 
inc^uii-ed  into  in  a  subsequent  appeal  from  the  subsequent  decision  of 
the  commissioners  allowing  or  disallowing  the  claim.  Ostrom  v. 
Curtis,  1  Cash.  461. 

2  Ibid.  ;  White  v.  Swain,  3  Pick.  365. 


236       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

issue  for  more  than  the  amount  of  such  assets  ;  and  if  there 
are  two  or  more  such  judgments,  the  court  will  apportion 
the  amount  between  them.^ 

If  it  is  not  ascertained,  at  the  end  of  eighteen  months 
after  the  granting  of  letters  testamentary  or  of  administra- 
tion, whether  an  estate  represented  insolvent  is  or  is  not 
so  in  fact,  any  creditor  whose  claim  has  not  been  pre- 
sented for  proof  may  commence  an  action  therefor  against 
the  executor  or  administrator,  which  maj  be  continued 
without  costs  for  the  defendant  until  it  appears  whether 
the  estate  is  insolvent.  ^  If  it  appears  solvent,  the  plain- 
tiff may  prosecute  the  action  as  if  no  such  representation 
had  been  made.  If  it  proves  insolvent,  he  will  have  no 
remedy  unless  new  assets  come  to  the  hands  of  the  ex- 
ecutor or  administrator,  in  which  case  he  may  petition 
that  the  commission  be  opened  ;  and  if  the  commission 
is  opened,  he  can  prove  his  claim. 

PEOVISIONS   AS   TO    INSOLVENT   ESTATES   OF    DECEASED 
NON-EESIDENTS. 

When  an  inhabitant  of  another  state  or  country  dies 
insolvent  and  leaves  estate  to  be  administered  here,  the 
estate  found  here  is  not  to  be  transmitted  to  the  foreign 
administrator  until  creditors  who  are  citizens  of  this  state 
have  received  their  equitable  dividends.  If  all  the  assets 
were  transmitted  to  the  foreign  administrator,  creditors 
in  this  state  would  be  subjected  to  the  expense  of  proving 
and  collecting  their  demands  abroad ;  and  the  pursuit  of 
their  claims  in  countries  where  the  local  law  makes  no 
provision   for   an   equal   distribution   of   the   assets    of  a 

1  R.  L.  c.  142,  §§  22,  23;  Bowers  v.  Hammond,  139  Mass.  363. 

2  R.  L.  c.  142,  §  31.  This  provision  does  not  suspend  the  special 
statute  of  limitations.     Blanchard  v.  Allen,  116  Mass.  447. 


INSOLVENT    ESTATES    OF   DECEASED    PERSONS.  237 

deceased  insolvent  might  be  wholly  fruitless.  Under  the 
provisions  of  our  statute,  citizens  of  this  state  cannot  be 
put  to  the  inconvenience  of  proving  their  claims  abroad 
when  there  are  assets  here ;  nor,  on  the  other  hand,  can 
the  whole  estate  found  here  be  expended  in  paying  the 
claims  of  our  citizens  to  tlie  prejudice  of  foreign  creditors  ; 
but  the  estate  found  here,  as  far  as  practical)le,  is  to  be  so 
disposed  of  that  all  creditors  of  the  deceased,  here  and 
elsewhere,  may  receive  each  an  equal  share  in  proportion 
to  their  respective  debts.^ 

To  this  end,  the  statute  provides  that  the  assets  shall 
not  be  sent  to  the  foreign  administrator  until  all  creditors 
Avho  are  citizens  of  this  state  have  received  the  just  pro- 
portion that  would  be  due  to  them  if  the  whole  estate  of 
the  deceased,  wherever  found,  that  is  applicable  to  the 
payment  of  common  creditors,  were  divided  among  all 
the  creditors  in  proportion  to  their  respective  debts,  with- 
out preferring  any  one  species  of  debt  to  another,^  in 
which  case  no  creditor  who  is  not  a  citizen  of  this  state 
shall  be  paid  out  of  the  assets  found  here  until  all  those 
who  are  citizens  have  received  their  just  proportion. 

The  statute  further  provides  that  if  there  is  any  residue 
remaining  after  such  payment  to  the  citizens  of  this  state, 
it  may  be  paid  to  any  other  creditors  who  have  duly  proved 
their  debts,  here,  in  proportion  to  the  amount  due  to  each 
of  them,  but  no  one  shall  receive  more  than  would  be  due 
to  him  if  the  whole  estate  were  divided  ratably  among  all 
the  creditors.     The  balance   may  be    transmitted   to   the 

1  Dawes  v.  Head,  3  Pick.  128;  Hooker  v.  Olmstead,  6  Pick.  481; 
Davis  V.  Estey,  8  Pick.  475. 

'^  The  local  laws  of  some  countries  prefer  debts  on  judgments, 
bonds,  etc.,  to  simple  contract  debts.  Such  preferences  are  not  to  be 
regarded  in  the  distribution  here. 


238       PROCEEDINGS  IN  THE  PROBATA:  COURTS. 

foreign  executor  or  administrator;  or,  if  there  is  none, 
it  shall,  after  the  expiration  of  four  years  from  the 
appointment  of  the  administrator,  be  distributed  ratably 
among  all  creditors,  both  citizens  and  others,  who  have 
proved  their  debts  in  this  state,^ 

1  R.  L.  c.  143,  §§  4,  5;  Welch  v.  Adams,  152  Mass.  76,  77. 

The  administrator  of  the  insolvent  estate  of  a  deceased  person  may 
maintain  a  bill  in  equity,  filed  within  two  years  after  giving  bond,  to 
recover  for  the  benefit  of  the  creditors,  even  if  all  their  claims  are 
otherwise  barred  by  the  special  statute  of  limitations,  property  con- 
veyed by  the  intestate  in  his  lifetime  in  fraud  of  them,  which,  when 
recovered,  will  constitute  new  assets.    Welsh  v.  Welsh,  105  Mass.  229. 


CHAPTER  XIY. 

SALES  or  LAND  BY  EXECUTORS,  ADMINISTRATORS,  AND 
GUARDIANS. 

SALES   BY   EXECUTORS   AND    ADMINISTRATORS. 

When  the  personal  estate  of  a  deceased  person  is  in- 
sufficient to  pay  his  debts  and  legacies  with  the  charges  of 
administration,  his  executor  or  administrator  may  sell  his 
real  estate  for  that  purpose,  having  been  first  licensed  there- 
for by  the  probate  court,  from  which  letters  testamentary 
or  of  administration  issued.^ 


1  R.  L.  c.  146,  §§  1,  4;  Marvel  v.  Babbitt,  143  Mass.  227;  Bocton 
Safe  Deposit  Co.  v.  Mixter,  146  Mass.  105;  Putuey  v.  Fletcher,  148 
Mass.  248;  Spooner  v.  Spooner,  155  Mass.  52. 

Nothing  in  Rev.  Laws,  chap.  64,  shall  extend  to  sales  made  by 
sheriiTs,  deputy  sheriffs,  constables,  collectors  of  taxes,  executors, 
administrators,  guardians,  assignees  of  insolvent  debtors,  or  by  any 
other  person  required  by  law  to  sell  real  or  personal  estate.  R.  L. 
c.  64,  §  15.  An  executor  who  is  residuary  legatee  and  gives  bond  for 
the  payment  of  debts  and  legacies  acquires  an  absolute  title  in  the 
estate  devised,  and  may  convey  it  without  license.  Clarke  v.  Tufts, 
5  Pick.  ;337 ;  Thayer  v.  AVinchester,  133  Mass.  447.  And  an  executor 
duly  authorized  thereto  by  the  terms  of  the  will  may  convey  the  lands 
of  his  testator  without  license.  But  when  the  executor,  so  empow- 
ered by  the  will,  dies  before  making  the  conveyance,  or  renounces  the 
ofl&ce  of  executor,  the  power  to  sell  does  not  devolve  upon  the  admin- 
istrator with  the  will  annexed  who  succeeds  him.  Such  administrator 
can  sell  only  by  license  of  court.  Tainter  v.  Clark,  13  Met.  220 ; 
Greenough  v.  Welles,  10  Cush.  571;  Larned  v.  Bridge,  17  Pick.  339; 
Conklin  v.  Edgerton's  Administrator,  21  Wend.  430.  If  the  power 
to  sell  is  given  to  two  executors,  one  of  whom  resigns,  the  other  may 


240       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  probate  court  may,  upon  the  petition  of  an  ad- 
ministrator, with  the  consent  of  all  the  parties  interested 

exercise  it  singly.  Gould  v.  Mather,  104  Mass.  283;  Warden  v.  Rich- 
ards, 11  Gray,  277. 

If  a  will  provides  that,  after  the  death  of  the  testator's  wife,  who  is 
the  executrix,  and  to  whom  the  use  and  income  of  his  estate  is  given 
during  her  life,  all  the  estate  shall  be  converted  into  money,  and  does 
not  in  terms  specify  the  person  who  shall  do  this,  the  power  to  sell  the 
real  estate  is  by  necessary  implication  given  to  the  administrator  de 
bonis  non  with  the  will  annexed.     Putnam  v.  Story,  132  Mass.  205. 

If  the  executor  is  authorized  to  sell  lands  for  trust  purposes,  he 
does  not,  by  renouncing  the  office  of  executor,  lose  the  power  to  con- 
vey as  trustee  under  the  will.  His  sales  and  conveyances,  made  after 
the  renunciation  of  his  executorship  and  after  his  acceptance  of  the 
trust,  are  valid  as  against  the  devisees  and  their  heirs.  Clark  v. 
Tainter,  7  Cush.  567. 

Where,  under  the  provisions  of  a  will,  the  sale  of  real  estate  by  a 
trustee  or  executor  is  dependent  upon  the  consent  of  a  person  who  has 
deceased,  the  probate  court  having  jurisdiction  of  the  settlement  of 
the  estate  may,  in  its  discretion  and  if  all  parties  interested  assent, 
authorize  the  sale  and  conveyance  of  such  real  estate  in  like  manner  as 
if  no  such  consent  had  been  required.  R.  L.  c.  148,  §  2.  An  admin- 
istrator, being  licensed  to  sell  the  estate  of  his  intestate,  may  sell 
estate  fraudulently  conveyed  by  the  deceased  in  whosesoever  hands  it 
may  be.     Drinkwater  v.  Drinkwater,  4  Mass  354. 

Where  the  intestate  had  only  a  power  of  appointment,  in  default  of 
which  the  estate  was  to  go  to  her  heirs,  and  she  made  no  appointment, 
it  was  held  that  she  had  no  interest  in  the  estate  which  could  be  sold 
by  her  administrator.     Coverdale  v.  Aldrich,  19  Pick.  391. 

Legatees  under  a  will  cannot  maintain  a  bill  in  equity  against  the 
administrator  with  the  will  annexed  of  the  testatrix  who  has  obtained 
a  license  from  the  probate  court  to  sell  her  real  estate  for  the  payment 
of  legacies,  to  determine  their  rights.    Sprague  v.  W^est,  127  Mass.  471. 

A  license  to  sell  the  real  estate  for  the  payment  of  debts  will  not  be 
granted  to  the  administrator  where  the  only  debt  existing  is  secured 
by  mortgage.     Scott  v.  Hancock,  13  Mass.  162. 

When  the  debts  are  barred  by  the  statute  of  limitations,  a  license 
to  sell  the  real  estate  will  be  void.    Tarbell  v.  Parker,  106  Mass.  347. 

A  license  to  sell  real  estate  in  this  commonwealth  belonging  to  a 
deceased  citizen  of  another  state  for  the  payment  of  debts  will  not  be 
granted  to  the  prejudice  of  the  heirs  when  it  appears  that  there  was 


SALES   OF   LANDS   BY   EXECUTORS,   ETC.  241 

or  after  notice,  license  him  to  sell  the  real  property  or  any 
undivided  interest  therein  belonging  to  the  estate  of  the 
intestate,  unless  the  appraisal  shows  that  it  exceeds  fifteen 
hundred  dollars  in  value,  in  such  manner  and  upon  such 
notice  as  the  court  orders,  for  the  purpose  of  distribution ; 
and  the  net  proceeds  of  such  sale,  after  deducting  the  ex- 
penses thereof  and  such  amount  as  may  be  required  for 
the  payment  of  debts  in  consequence  of  a  deficiency  in 
personal  property,  shall,  after  two  years  from  the  filing 
of  the  administrator's  bond,  be  distributed  to  the  persons 
who  would  have  been  entitled  to  the  real  estate  and  in  the 
proportions  to  which  they  would  have  been  entitled,  had 
it  not  been  sold.^ 

As  tlie  legal  title  to  real  estate  vests  in  the  heirs  or 
devisees  immediately  upon  the  death  of  the  owner,  the 
administrator,  as  such,  has  nothing  to  do  with  the  lands 
of  his  intestate,  except  to  see  that  they  are  appraised, 
until  he  is  licensed  to  sell  them  for  the  payment  of  debts 

a  fund  provided  for  the  payment  of  debts  in  such  other  state,  at  least 
until  it  is  shown  that  the  creditors  have  used  some  diligence  to  obtain 
payment  of  such  fund,  and  have  met  with  some  legal  impediment. 
Livermore  v.  Haven,  23  Pick.  116. 

The  court  cannot,  on  the  petition  of  the  administrator  or  executor, 
license  a  stranger  to  make  the  sale  or  conveyance.  Crouch  v.  Eveleth, 
12  Mass.  503. 

An  estate  of  homestead  is  not  exempt  from  a  sale  by  the  guardian 
of  the  owner,  for  the  payment  of  his  debts  and  for  his  support  and 
maintenance,  upon  a  license  of  the  probate  court.  Wilbur  v.  Hickey, 
8  Gray,  432.  An  executor  who  is  authorized  by  will  "to  sell  and 
make  conveyance  of  personal  and  real  estate  either  at  public  or  private 
sale  as  the  proper  and  convenient  settlement  of  the  estate  may  re- 
quire," is  empowered  to  sell  the  real  estate  only  for  the  payment  of 
debts,  legacies,  and  the  cliarges  of  administration,  and  not  for  the 
purpose  of  making  partition  or  distribution  among  the  devisees. 
Allen  V.  Dean,  148  Mass.  594. 

1  R.  L.  c.  146,  §  18. 

16 


242       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

and  charges.^  Nor  has  the  executor,  unless  under  an 
authority  given  him  by  the  will  of  his  testator.^  When, 
therefore,  lands  are  sold  by  executors  and  administrators, 
it  is  important  for  them  to  observe  strictly  the  directions 
of  the  statute,  from  which  alone  they  derive  the  power  to 
make  the  conveyance.  The  probate  court  has  no  jurisdic- 
tion to  grant  a  license  to  an  executor  who  is  also  residuary 
legatee,  and  who  has  given  a  bond  to  pay  debts  and  lega- 
cies.^ Such  a  bond  is  a  conclusive  admission  of  assets, 
and  takes  the  place  of  the  property  in  providing  a  fund 
for  the  payment  of  debts  and  legacies.  And  the  execu- 
tor takes  an  absolute  title  in  the  land  included  in  the 
residuary  devise,  and  may  convey  it  without  license.* 

Licenses  to  sell  real  estate  are  provided  for  by  the  stat- 
ute only  when  the  personal  property  is  insufficient  for  the 
payment  of  debts,  legacies,  and  charges  of  administration. 
The  sale  must  be  necessary  for  the  payment  of  claims 
which  can  be  enforced  at  law.^    The  convenience  of  parties 

1  Administrators,  executors,  and  trustees  maybe  licmsed  to  sell  real 
estate  for  the  payment  of  the  tax  on  collateral  legacies  and  successions. 
R.  L.  c.  15,  §  8. 

2  The  court  may  authorize  a  special  administrator,  who  is  appointed 
by  reason  of  delay  in  granting  letters  testamentary,  to  take  charge  of 
the  real  estate,  collect  the  rents,  make  necessary  repairs,  and  do  all 
other  things  which  it  may  deem  needful  for  the  preservation  of  the 
real  estate  and  as  a  charge  thereon.     R.  L.  c.  137,  §  10. 

8  Thayer  v.  Winchester,  133  Mass.  447. 

*  Clarke  v.  Tufts,  5  Pick.  336.  The  giving  of  the  bond  for  the 
payment  of  debts  and  legacies  does  not  discharge  the  lien  on  the  land 
for  the  payment  of  debts,  except  on  such  part  as  may  be  sold  by  the 
executor  to  one  who  purchases  in  good  faith  and  for  a  valuable  con- 
sideration. All  estate  not  so  sold  may  be  taken  on  execution  by  any 
creditor  not  otherwise  satisfied,  in  like  manner  as  if  a  bond  had  been 
given  in  the  other  form.  R.  L.  c.  149,  §  2;  Collins  v.  Collins,  140 
Mass.  502 ;  Jenkins  v.  Wood,  144  Mass.  241. 

^  Larason  v.  Schutt,  4  Allen,  359.  A  petition  for  a  license  to  .sell 
real  estate  to  meet  a  claim  not  accruing  within  two  years  from  the 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.        243 

interested  in  the  lands  would  be  promoted,  in  some  cases, 
by  a  sale  of  them  by  the  administrator,  although  the  pro- 
ceeds are  not  needed  for  the  payment  of  debts  or  legacies  ; 
but  licenses  cannot  be  granted  under  such  circumstances 
except  to  public  administrators  (whose  sales  under  license 
are  considered  in  a  subsequent  part  of  this  chapter),  or 
when  the  appraised  value  of  the  real  estate  does  not 
exceed  the  sum  of  fifteen  hundred  dollars,^  or  for  the 
payment  of  the  legacy  and  succession  tax.^ 

The  Real  Estate  liable  to  he  sold  includes  all  lands  of  the 
deceased,  and  all  rights  of  entry  and  of  action,  and  all 
other  rights  and  interests  in  lands  which  by  law  would 
descend  to  his  heirs,  or  which  would  have  been  liable  to 
attachment  or  execution  by  a  creditor  of  the  deceased  in 
his  lifetime ;  ^  but  the  title  passed  by  any  such  sale  is  sub- 
taking  out  of  administration  thereon  will  not  lie  pending  a  petition 
for  the  retention  of  assets  to  satisfy  the  claim.  Cobb  v.  Kempton,  154 
Mass.  266. 

1  R.  L.  c.  146,  §  18. 

2  R.  L.  c.  15,  §  8. 

3  All  land  held  in  fee  tail,  except  an  estate  tail  in  remainder,  shall 
be  liable  for  the  debts  of  the  tenant  in  tail,  both  in  his  lifetime  and 
after  his  decease,  as  if  held  in  fee  simple  ;  and  if  taken  on  execu- 
tion, or  sold  by  executors,  administrators,  or  guardians,  the  creditor 
or  purchaser  shall  hold  such  lands  in  fee  simple.     R.  L.  c.  134,  §  3. 

All  the  lands  of  a  debtor  in  possession,  remainder,  or  reversion, 
all  his  rights  of  entry  into  lands  and  of  redeeming  mortgaged  lands, 
and  all  such  lands  and  rights  which  have  been  fraudulently  conveyed 
by  him  with  intent  to  defeat,  delay,  or  defraud  his  creditors,  or  which 
have  been  purchased  or  directly  or  indirectly  paid  for  by  him  but 
the  record  title  thereto  retained  in  the  vendor  or  conveyed  to  a 
third  person  with  intent  to  defeat,  delay,  or  .defraud  the  creditors  of 
the  debtor,  or  on  a  trust  for  him,  express  or  implied,  whereby  he  is 
entitled  to  a  present  conveyance,  may,  except  as  provided  in  chap.  131 
(relating  to  homesteads),  be  taken  on  execution  for  his  deb:s.  R.  L. 
c.  178,  §  1. 

An  executor  or  administrator  licensed  to  sell  lands  fraudulently 


244       PKOCEEDINGS  IN  THE  PROBATE  COUKTS. 

ject  to  the  right  of  dower  of  the  wife  or  to  the  right 
of  curtesy  by  the  husband  of  the  deceased,  and  no  claim 
by  entry  or  by  action  to  lands  fraudulently  conveyed  by 


coaveyed  by  the  deceased,  or  fraudulently  held  by  another  person  for 
him,  or  to  w  liicli  he  had  a  right  of  entry  or  of  action  or  a  right  to  a 
conveyance,  may,  within  one  year  after  such  license,  sell  the  land 
without  first  obtaining  possession  thereof  by  entry  or  by  action,  or  he 
may  without  a  formal  entry  bring  an  action  to  obtain  possession  by 
virtue  of  such  license,  demanding  the  land  as  executor  or  adminis- 
trator, and  may  sell  the  same  within  one  year  after  possession  is 
obtained.  R.  L.  c.  146,  §  17  ;  Yeomans  v.  Brown,  8  Met.  51  ;  Allen 
V.  Ashley  School  Fund,  102  Mass.  262  ;  Hannum  v.  Day,  105  Mass. 
as  ;  Walker  v.  Fuller,  li7  Mass.  491.  The  case  of  Caverly  v.  East- 
man, 142  Mass.  4,  is  interesting  from  its  peculiar  facts.  But  whether 
an  administrator  may  prosecute  a  writ  of  entry  brought  by  his  intes- 
tate, quaere.  Brigham  v.  Hunt,  152  Mass.  258.  The  executor  may 
maintain  a  writ  of  entry  to  recover  it  without  first  selling  the  other 
real  estate  of  his  testator.     Tenney  r.  Poor,  14  Gray,  500. 

Real  estate  conveyed  by  an  intestate  in  his  lifetime,  without  ade- 
quate consideration,  and  by  way  of  gift,  either  in  whole  or  in  part,  may 
be  sold  by  his.  administrator  to  pay  his  debts,  as  estate  conveyed  by 
him  with  intent  to  defraud  his  creditors,  if,  at  the  time  of  the  convey- 
ance, he  thereby  rendered  himself  unable  to  pay  his  then  existing 
creditors.  Norton  v.  Norton,  5  Cash.  524;  Allen  v.  Trustees  of  Ashley 
School  Fund,  102  Mass.  262. 

The  proceeds  of  a  sale  by  an  administrator  of  real  estate  conveyed 
by  his  intestate  with  a  view  to  defraud  creditors,  though  such  con- 
veyance was  void  at  the  time  as  against  then  existing  creditors  only, 
are  applicable  to  the  payment  of  all  the  creditors  alike.  Norton  i'. 
Norton,  supra. 

If  an  administrator  receives  payment  of  a  note  given  for  the 
purchase-money  of  an  estate  conveyed  by  his  intestate  to  defraud 
creditors,  he  does  not  thereby  ratify  the  conveyance  ;  unless  the 
payment  is  received  with  full  knowledge  of  the  facts,  and  the  ad- 
ministrator is  a  party  in  interest,  in  which  case  it  might  be  otherwise. 
Ibid. 

The  interest  of  a  deceased  partner  in  partnership  real  estate  which 
is  not  required  for  the  settlement  of  the  affairs  of  the  firm  is  to  be 
treated  as  realty,  and  may  be  sold  for  the  payment  of  legacies.  Wil- 
cox c.  Wilcox,  13  Allen,  252  ;  Harris  v.  Harris,  153  Mass.  439. 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.       245 

the  deceased  can  be  made,  unless  within  five  years  after 
the  decease  of  the  grantor.^ 

When  land  is  demised  for  the  term  of  one  hundred  years 
or  more,  the  term,  so  long  as  fifty  years  thereof  remain 
unexpired,  is  regarded  by  the  statute  as  an  estate  in  fee 
simple  as  to  everything  concerning  the  sale  thereof  by 
executors,  administrators,  and  guardians,  by  license  from 
any  court.^ 

The  executor  or  administrator  may  sell  lands  held  in 
mortgage,  or  taken  in  execution  for  a  debt  due  the  de- 
ceased, at  any  time  before  the  right  to  redeem  them  is 
foreclosed,  in  the  same  manner  as  personal  estate.  The 
legal  title  to  such  lands  is  in  him.  He  holds  it  in  trust 
for  the  persons  who  would  be  entitled  to  the  money  if  the 
mortgage  or  other  debt  had  been  paid.  But  after  the  right 
of  redemption  is  foreclosed,  the  executor  should  obtain 
license  before  making  sale  of  the  land,  in  the  same  man- 
ner as  if  the  deceased  had  died  seised  of  it.  The  license 
is  not  necessary  to  enable  the  executor  to  convey  the 
legal  title,  which  is  already  vested  in  him,  but  is  in- 
tended solely  to  bind  heirs  and  legatees,  and  make  the 
title  good  against  them  as  the  owners  of  the  beneficial 
interest.^ 

The  Petition  for  License  to  sell  Real  Estate  must  be  pre- 
sented by  the  executor  or  administrator  to  the  probate 
court  of  the  county  in  which  letters  testamentary  or  of 
administration  issued.     If  there  are  two  or  more  executors 

1  R.  L.  c.  146,  §2. 

2  R.  L.  c.  129,  §  1;  Hollenbeck  v.  McDonald,  112  Mass.  247. 

'  An  executor  who,  after  foreclosing  a  mortgage  lield  by  his  testa- 
tor, sells  and  conveys  the  land  without  license  of  court,  is  not  liable 
to  an  action  on  the  covenant  of  good  right  to  convey  in  his  deed,  if 
the  legatees  have  received  the  purchase-money  ;  uor,  it  seems,  if  they 
have  not.     Baldwin  v.  Timmins,  3  Gray,  302. 


246  PROCEEDINGS   IN   THE   PROBATE    COURTS. 

or  administrators,  all  must  join  in  the  petition.^  It  may 
be  presented  as  soon  as  the  necessity  of  the  proposed  sale 
becomes  apparent.  It  must  be  in  writing,  and  the  statute 
requires  to  be  set  forth  therein  the  value  of  the  personal 
estate  in  the  hands  of  the  executor  or  administrator,  the 
amount  of  the  charges  of  administration,  the  amount  of 
debts  due  from  the  deceased  as  nearly  as  they  can  be 
ascertained,  and,  in  the  case  of  a  person  dying  testate, 
the  amount  of  any  legacies  given  in  his  will.^  It  is  suffi- 
cient to  state  in  the  petition  the  gross  amount  of  all  the 
debts  due,  but  the  executor  or  administrator  must  file 
with  his  petition  a  list  of  the  debts,  so  far  as  they  can  be 
ascertained,  showing  the  name  of  each  creditor  and  the 
sum  due  to  each.  Such  list  of  claims  should  be  signed  by 
the  petitioner  and  sworn  to.^ 

If  it  is  necessary  to  sell  only  part  of  the  real  estate,  the 
petitioner  may  also  set  forth  the  value,  description,  and 
condition  of  the  estate,  or  of  such  part  as  he  proposes  to 
sell,  and  the  court  may  direct  what  specific  part  shall  be 
sold.  If  the  estate  is  so  situated  that  by  a  partial  sale 
the  residue  of  the  estate,  or  of  some  specific  piece  or  part 
thereof,  would  be  greatly  injured,  the  facts  should  be 
stated  in  the  petition  ;  and  the  court  may  license  a  sale  of 
the  whole  of  the  estate  or  of  such  part  as  may  appear 
best.4 

1  Hannum  v.  Day,  105  Mass.  33  ;  Cobb  v.  Kempton,  154  Mass. 
270. 

2  R.  L.  c.  146,  §  6. 

8  It  is  not  necessary  that  the  amount  of  the  debts  should  have  been 
previously  ascertained  by  judgnaent  against  the  executor,  or  by  com- 
mission of  insolvency.     Tenney  v.  Poor,  14  Gray,  500. 

*  R.  L.  c.  146,  §§  6,  7  ;  Yeoraans  v.  Brown,  8  Met.  58  ;  Gregson  v. 
Tuson,  153  Mass.  328.  A  decree  of  the  probate  court,  unappealed 
from,  is  conclusive  of  the  question  whether  a  part  of  the  land  suflBicient 


SALES  OF  LANDS  BY  EXECUTOKS,  ETC.        247 

It  is  sometimes  the  case  that  the  testator  has  made  by 
will  some  disposition  of  his  estate  for  the  payment  of  his 
debts,  or  has  given  some  directions  which  may  vary  the 
order  in  which  the  different  parts  of  his  estate  shall  be 
appropriated.  Thus,  though  the  personal  property  is  first 
liable  for  payment  of  debts,  the  testator  may  expressly 
exempt  it,  or  some  portion  of  it,  by  making  it  the  subject 
of  a  specific  legacy,  and  may  direct  his  debts  to  be  paid 
out  of  other  funds,  or  may  leave  other  funds  not  exempted. 
Such  specific  legacies  are  not  to  be  taken  for  the  payment 
of  debts,  if  there  are  other  funds  so  first  liable.  The  law 
will  respect  the  testator's  directions  so  far  as  is  consistent 
with  the  rights  of  creditors.  If  the  will  contains  a  pro- 
vision for  the  payment  of  debts,  or  which  may  require  or 
induce  the  court  to  marshal  the  assets  in  a  manner  differ- 
ent from  that  which  the  law  would  otherwise  provide,  the 
executor  shall  set  forth  in  the  petition  a  copy  of  the  will 
and  the  court  shall  marshal  the  assets  accordingly,  so 
far  as  can  be  done  consistently  with  the  rights  of  the 
creditors.^  Undevised  real  property  is  first  chargeable 
with  the  payment  of  debts  or  legacies  in  exoneration  of 
the  real  estate  devised,  unless  a  different  intention  appears 
by  the  will,^ 

Notice  to  Parties  interested.  —  The  license  will  not  be 
granted  until  notice  of  the  petition,  and  of  the  time  and 
place  appointed  for  hearing  the  same,  has  been  served 
either  personally  on  all  persons  interested  in  the  estate,^ 

to  pay  the  debts  may  be  sold  without  injuring  the  residue.  Allen  v. 
Trustees  of  the  Ashley  School  Fund,  102  Mass.  262. 

1  R.  L.  c.  146,  §  8.  2  Ibid.  §  3. 

*  When  the  executor  petitions  for  license  to  sell  land  of  which  his 
testator  was  disseised  at  the  time  of  his  death,  for  the  purpose  of  pay- 
ing his  debts,  the  disseisor  in  possession  is  not  interested  in  the  estate, 
within  the  meaning  of  the  statute,  and  is  not  entitled  to  notice  of  the 


248       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

at  least  fourteen  days  before  the  time  appointed  for  the 
hearing,  or  by  publication  three  weeks  successively  in 
some  newspaper,  as  the  court  may  order.^  The  petition 
may  be  filed  in  the  probate  office  on  any  day,  and  tlie  order 
issued  by  the  register  of  probate.  But  if  all  persons  inter- 
ested signify  their  assent  in  writing  to  the  sale,  notice  may 
be  dis])ensed  with.^  The  assent  should  be  indorsed  on  the 
petition. 

TJie  Necessity  for  the  Proposed  Sale. — The  party  apply- 
ing for  license  to  sell  the  real  estate  of  his  testator  or 
intestate  must  prove  the  facts  set  forth  in  his  petition. 
It  must  appear  that  a  necessity  exists  for  the  sale  he  pro- 
poses to  make.  If  the  personal  assets  are,  in  fact,  suffi- 
cient for  the  payment  of  the  debts  and  legacies,  and  he 
obtains  a  license  by  misrepresenting  the  condition  of  the 

petition  in  order  to  render  the  license  valid  as  against  liim.  Yeomans 
V.  Brown,  8  Met.  51.  No  notice  need  be  given  to  persons  \\ho  claim 
under  a  title  derived  independently  of  the  deceased.  Walker  w.  Fuller, 
147  Mass.  491. 

The  practice  in  the  probate  court  is  to  order  notice  in  the  manner 
prescribed  by  statute,  and  it  is  not  made  the-  duty  of  the  executor 
to  obtain  the  appointment  of  guardians  to  all  minors  interested  in 
the  estate  before  he  can  obtain  a  license.  Holmes  v.  Beal,  9  Cash. 
226. 

The  wife  of  a  devisee  of  real  estate  is  not  entitled  to  notice  of  a 
petitition  of  the  devisor's  administrator  for  license  to  sell  it  for  the 
payment  of  debts,  legacies,  and  charges  of  administration.  Harring- 
ton V.  Harrington,  13  Gray,  513. 

1  R.  L.  c.  146,  §  10;  Dexter  v.  Shepard,  117  Mass.  480  ;  Berais  v, 
Leonard,  118  Mass.  502.  A  notice  of  a  sale  of  a  trust  estate  ad- 
dressed to  the  "  heirs  at  law,  next  of  kin,  and  all  other  persons 
interested,"  is  sufficient.  Boston  Safe  Deposit  Co.  v.  Mixter,  146 
Mass.  100. 

2  R.  L.  c.  162,  §  45.  Only  persons  in  being  who  have  a  vested  in- 
terest in  the  real  estate  are  entitled  to  notice.  Dexter  v.  Cotting,  149 
Mass.  92.  But  creditors  of  the  estate  are  entitled  to  notice.  Browne 
V.  Doolittle,  151  Mass.  595. 


SALES   OF   LANDS   BY   EXECUTORS,    ETC.  249 

estate,  a  sale  under  a  license  so  obtained  is  a  breach  of 
his  bond  for  faithful  administration.^ 

The  averment  and  admission  of  the  executor  that  a 
certain  debt  is  due  from  the  estate  is  not  evidence  to 
establish  the  fact.  But  any  creditor  of  the  deceased  is 
a  competent  witness  to  prove  his  debt  in  support  of  the 
executor's  petition.^ 

The  adjudication  of  the  probate  court  as  to  the  exist- 
ence of  debts  and  charges  is  final,  so  far  as  it  affects 
any  title  acquired  by  virtue  of  the  license,  but  does  not 
affect  the  right  of  the  executor  or  administrator  to  contest 
the  validity  of  such  debts  and  charges.^ 

Any  person  interested  may  appear  and  object  to  the 
granting  of  the  license,  and  if  it  appears  to  the  court  that 
either  the  petition  or  the  objection  thereto  is  unreason- 
able, they  may  award  costs  to  the  prevailing  party .^ 

It  may  be  that  the  heirs  or  devisees  prefer  to  keep  the 
estate  entire  and  in  their  own  hands,  or  the  value  of  the 
property  may  be  temporarily  depressed,  so  that  it  cannot 
be  sold  immediately  without  a  considerable  sacrifice.  If 
for  these  reasons,  or  for  any  reasons,  the  persons  interested 
wish  to  stay  proceedings  under  the  petition  and  prevent 
the  sale,  they  can  effect  that  result  by  paying  to  the 
executor  or  administrator  the  amount  of  money  needed  for 
the  payment  of  claims  against  the  estate,  and  the  money 
so  received  will  be  assets  of  the  estate  to  be  administered 
and  accounted  for  ;  and  the  executor  or  administrator  will 

^  Chapin  v.  Waters,  110  Mass.  195.  It  is  no  defence  that  the  sale 
was  a  pretence  for  the  purpose  of  defeating  a  mortgage  made  by  the 
devisee  to  defraud  his  creditors,  or  that  the  executor  never  received 
anything  from  the  sale.     Ibid. 

2  Chamberlin  r.  Chamberlin,  4  Allen,  184  ;  Ela  v.  Edwards,  97 
Mass.  318. 

»  E.  L.  c.  148,  §  21.  «  Ibid.  §  10. 


250       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

be  liable  on  his  bond  for  any  failure  to  appropriate  such 
assets  to  the  payment  of  debts  and  legacies ;  ^  or  any  of 
the  persons  interested  may  give  bond  to  the  executor  or 
administrator,  in  a  sum  and  with  sureties  approved  by  the 
court,  with  condition  to  pay  all  legacies  mentioned  in  the 
petition,  all  debts  therein  mentioned  that  shall  eventually 
be  found  due  from  the  estate,  and  charges  of  administra- 
tion, so  far  as  the  personal  estate  may  prove  insufficient 
therefor.  If  the  money  is  so  paid,  or  if  such  a  bond  is 
given,  license  to  sell  will  not  be  granted.^  The  heirs 
may  autliorize  the  administrator  to  collect  the  rents  and 
appropriate  them  to  the  payment  of  the  debts,  and  thereby 
avoid  the  necessity  for  the  sale.^ 

As  to  the  License.  —  Upon  the  petition  of  an  executor  or 
administrator  for  a  license  to  sell  the  real  property  of  the 
deceased,  the  court  may,  if  the  petitioner  so  requests, 
authorize  him  to  sell  such  property  at  public  auction  and 
to  convey  to  the  purchaser  all  the  estate,  right,  title,  and 
interest  which  the  deceased  had  therein  at  the  time  of  his 
death  and  which  was  then  chargeable  with  the  payment  of 
his  debts.  If  the  petitioner  requests  that  such  property 
may  be  sold  by  private  sale,  and  the  court,  upon  a  hearing, 
finds  that  an  advantageous  offer  for  the  purchase  thereof 
has  been  made  to  the  petitioner,  and  that  the  interests  of 
all  parties  will  be  promoted  by  the  acceptance  of  such  offer, 

1  Fay  V.  Taylor,  2  Gray,  154. 

2  R.  L.  c.  146,  §  12 ;  Francis  v.  Daley,  150  Mass.  385. 

The  condition  of  the  bond  is  not  broken  until  it  has  been  ascer- 
tained, by  an  account  settled  in  court,  that  the  personal  estate  is 
insufficient.     Studley  ;).  Josselyn,  5  Allen,  118. 

'  But  the  occupation  of  the  real  estate  by  one  of  two  administrators, 
who  is  also  one  of  the  heirs,  without  paying  or  charging  himself  with 
any  rent,  is  not  of  itself  a  bar  to  granting  the  license  to  sell.  Palmer 
V.  Palmer,  13  Gray,  326. 


SALES    OF   LANDS    BY    EXECUTORS,   ETC.  251 

it  may  authorize  a  conveyance  by  private  sale  in  accord- 
ance with  such  offer  or  upon  other  terms ;  but  such  peti- 
tioner so  authorized  may  nevertheless  sell  such  property  by 
public  auction.!  The  court  may  license  in  terms  the  sale 
of  the  whole  of  the  estate  of  the  deceased,  when  the 
executor  represents  in  his  petition,  and  it  appears  to  the 
court,  that  a  sale  of  the  whole  is  necessary  ,2  or  may  license 
the  sale  of  such  part  thereof  as  is  deemed  necessary  and 
most  for  the  interest  of  all  concerned,  or  may  direct  what 
specific  part  shall  be  sold.^  The  license  is  sufficient  if  it  is 
in  general  terms,  authorizing  the  sale  of  so  much  as  will 
raise  a  certain  sum  ;  *  but  the  license  must  concur  with  and 
be  based  upon  the  petition.^  If  it  is  necessary,  under  the 
provisions  of  the  will  of  the  deceased,  the  court  will  marshal 
the  assets,  and  the  executor  will  appropriate  the  lands  in 
the  order  specified  by  the  court.^ 

1  R.  L.  c.  146,  §  9 ;  Walker  v.  Fuller,  147  Mass.  491. 

2  R.  L.  c.  146,  §  7 ;  Sewall  v.  Raymond,  7  Met.  454 ;  Gregson  v. 
Tuson,  153  Mass.  329.  Under  a  license  to  sell  the  whole,  the  reversion 
of  land  assigned  to  the  widow  as  dower  may  be  sold.  Bancroft  v. 
Andrews,  6  Cush.  493,  semhle. 

*  R.  L.  c.  156,  §  6  ;  Gregson  v.  Tuson,  supra. 

*  Norton  v.  Norton,  5  Cush.  524;  Sewall  v.  Raymond,  7  Met.  454. 
5  On  the  petition  for  license  to  sell  a  specific  portion  of  the  estate 

for  the  payment  of  debts  and  charges,  and  after  publication  of  notice 
to  show  cause  why  license  should  not  be  granted  to  sell  "  the  whole  of 
the  real  estate  of  said  deceased,"  a  license  to  sell  "the  whole  of  the 
real  estate  of  said  deceased  "  is  irregular  and  void,  and  will  not  support 
an  action  by  the  administrator  on  the  Pub.  Stats,  c.  134,  §  15  (now 
R.  L.  c.  146,  §  17),  to  recover  the  specific  portion,  as  having  been 
fraudulently  conveyed  by  the  deceased.  Verry  v.  McClelkin,  6  Gray, 
535;  Tenney  v.  Poor,  14  Gray,  500;  Gregson  v.  Tuson,  supra,  and  cases 
cited. 

The  executor  may  be  licensed  to  sell  land  suflScient  to  pay  a  larger 
sum  than  the  amount  of  debts  and  charges  named  in  the  petition. 
Tenney  v.  Poor,  14  Gray,  500. 

«  See  Humes  v.  Wood,  8  Pick.  478;  Lee,  Appellant,  18  Pick.  285; 


252       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  general  order  of  marshalling  assets  for  the  payment 
of  debts  is :  1.  The  personal  estate  not  specifically  be- 
queathed or  otherwise  exempted.  2.  Lands  appropriated 
in  the  will  as  a  fund  for  the  payment  of  debts.  3.  Lands 
descended.  4.  Lands  specifically  devised.^  Specific  lega- 
cies and  devises  are  appropriated  ratably  to  the  payment  of 
debts.2 

License  to  sell  for  the  payment  of  debts  is  not  usually 
granted  after  the  expiration  of  the  period  (two  years)  lim- 
ited for  the  commencement  of  actions  against  executors 
and  administrators  who  have  given  due  notice  of  their 
appointment.  The  object  and  general  effect  of  the  statute 
making  this  limitation  is  to  discharge  the  lien  of  creditors 
on  the  land  at  the  expiration  of  the  two  years,  thereby 
promoting  the  speedy  settlement  of  estates,  and  establish- 
ing the  titles  of  the  heirs.  If  no  claims  exist  but  those 
against  which  the  statute  of  limitations  furnishes  complete 
protection,  the  proceeds  of  the  real  estate  are  not  needed 
for  the  payment  of  debts,  and  a  license  to  sell  cannot  be 
granted.  The  question  to  be  determined  upon  every 
application  for   a  license  is,  whether   the   proposed   sale 

Adams  v.  Brackett,  5  Met.  280 ;  Ellis  v.  Page,  7  Cush.  161 ;  Hewes  v. 
Dehon,  3  Gray,  205;  Plimpton  v.  Fuller,  11  Allen,  139;  Farnum  v. 
Bascom,  122  Mass.  282;  Johnson  v.  Home  for  Aged  Women,  152  Mass. 
93,  and  cases  cited. 

1  Hays  V.  Jackson,  6  Mass.  149;  Livingston  v.  Newkirk,  3  Johns. 
Ch.  312;  Blaney  v.  Blaney,  1  Cush.  11.5,  and  cases  cited. 

Any  person  interested  may  appeal  from  a  decree  granting  a  license 
to  sell  real  estate,  but  on  such  an  appeal  the  question  of  title,  except 
so  far  as  any  doubt  regarding  it  may  affect  the  expediency  of  the  sale, 
is  not  properly  before  the  court.  AValker  v.  Fuller,  147  Mass.  489.  A 
sale  daring  the  time  allowed  for  an  appeal  is  invalid.  Daley  v.  Francis, 
153  Mass.  8. 

'-  Farnum  v.  Bascum,  122  Mass.  282;  Hallowell's  Estate,  23  Penn. 
St.  223 ;  Long  i;.  Short,  1  P.  Wms.  403. 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.       253 

is  necessary  for  the  payment  of  claims  against  the  estate.^ 
A  license  may  be  granted  after  the  expiration  of  the  two 
years,  provided  there  are  claims  against  the  estate  upon 
which  the  statute  of  limitations  does  not  operate.^  But 
the  court  will  not  grant  a  license  after  the  two  years  have 
elapsed  unless  extraordinary  circumstances  render  it  proper, 
especially  when  the  effect  will  be  to  disturb  titles  acquired 
under  the  presumption  that  all  the  debts  had  been  paid.^ 
But  license  to  sell  for  the  payment  of  legacies  may  be 
granted  after  the  expiration  of  the  two  years.* 

As  to   the  Time  of  Sale. —  No  license  to  sell  land  con- 

1  Lamson  v.  Schutt,  4  Allen,  359;  Hudson  v.  Hulburfc,  15  Pick.  423  ; 
Heath  V.  Wells,  5  Pick.  140;  Tarbell  v.  Parker,  106  Mass.  347.  See 
also  Gregson  v.  Tuson,  153  Mass.  329. 

-  Palmer  v.  Palmer,  13  Gray,  326 ;  Richmond,  Petitioner,  2  Pick. 
567.  License  may  be  granted  after  the  expiration  of  the  two  years  if 
a  sale  is  necessary  for  the  payment  of  debts  proved  before  commis- 
sioners within  the  two  years.     Edmunds  v.  Rockwell,  125  Mass.  363. 

*  Where  an  executor  has  paid  debts  of  his  testator  beyond  the 
amount  of  the  personal  assets,  within  the  time  limited  by  statute,  he 
cannot  afterwards  be  licensed  to  sell  lands  to  reimburse  himself,  unless 
the  estate  remains  as  it  was  at  the  death  of  the  testator,  and  his  appli- 
cation is  made  in  a  reasonable  time  after  his  payment  of  the  debts. 
Allen,  Petitioner,  15  Mass.  58. 

But  where  the  laud  had  neither  been  sold  nor  divided  among  the 
heirs,  an  administrator  who  had  demands  against  his  intestate  and 
had  made  advances  to  the  estate  out  of  his  own  funds,  but  had  ren- 
dered no  account  until  after  the  time  limiting  the  bringing  of  actions 
had  expired,  the  delay  having  been  occasioned  in  part  by  an  attempt 
to  collect  a  debt  abroad,  was  licensed  to  sell.  Richmond,  Petitioner, 
2  Pick.  567 ;  and  see  Palmer  ;;.  Palmer,  13  Gray,  326 ;  Munroe  v. 
Holmes,  13  Allen,  109;  Ames  v.  Jackson,  115  Mass.  511. 

*  An  executor  died  several  years  after  his  appointment  without 
having  paid  the  legacies  given  by  the  will.  No  demand  had  ever 
been  made  upon  him  by  the  legatees.  An  administrator  with  the  will 
annexed  was  licensed  to  sell  real  estate  for  the  payment  of  the  lega- 
cies eight  years  after  the  probate  of  the  will.  Smith  i'.  W^ells,  134 
Mass.  11. 


254       TROCEEDINGS  IN  THE  PROBATE  COURTS. 

tinucs  in  force  more  than  one  year  after  it  is  granted, 
and  sales  must  be  made  withiiv  the  year,^  except  when  a 
sale  is  made  of  land  which  was  not  in  possession  of  the 
deceased  at  the  time  of  his  death,  and  is  recovered  by  the 
executor  or  administrator.  Land  so  recovered  may  be  sold 
at  any  time  within  one  year  after  possession  is  obtained.^ 
But  it  is  not  essential  that  the  deed  be  delivered  within 
the  year,  provided  all  the  other  proceedings  are  regular. 
Notice  of  the  Time  and  Place  of  Sale  must  be  given  by 
notices  posted  thirty  days  at  least  before  the  sale,  in  some 
public  place  in  the  city  or  town  in  which  the  land  lies,  and 
in  two  adjoining  cities  or  towns,  if  there  are  so  many  in  the 
county,  or,  if  the  court  granting  the  license  so  orders,  by 
publishing  the  notice  once  in  each  of  three  successive  weeks 
in  a  newspaper.^  Such  notice  is  essential  to  the  validity  of 
the  sale.  The  form  of  the  notice  is  not  material,  but  the 
time  and  place  fixed  for  the  sale  should  be  distinctly  stated. 
An  error  in  this  particular  may  invalidate  the  sale.*  The 
conditions  of  the  sale  are  not  necessarily  to  be  stated;^  but 
the  notices  should  plainly  identify  the  property,  ^  and  con- 

1  This  provision  is  limited  to  sales  by  executors,  administrators,  or 
guardians;  it  does  not  extend  to  sales  by  trustees.  Boston  Safe 
Deposit  Co.  V.  Mixter,  146  Mass.  105. 

2  n.  L.  c.  146,  §  17;  c.  148,  §  8;  Walker  ;;.  Fuller,  147  Mass.  491. 
s  R.  L.  c.  146,  §  14. 

*  Where  the  sale  was  advertised  to  be  on  Friday,  the  17th,  whereas 
Friday  was  in  fact  the  16th,  and  the  sale  was  made  on  the  16th,  it  was 
held  void,  although  in  the  last  publication,  which  was  on  the  day  of 
sale,  the  error  was  corrected.     Welhnan  v.  Lawrence,  15  Mass.  226. 

Where  the  advertisement  bore  no  date  and  recited  the  fact  that 
license  was  granted  "  on  the  5th  day  of  April  instant,"  and  gave 
notice  that  the  land  would  be  sold  "on  the  22d  day  of  said  April,"  it 
was  held  that  the  notice  was  not  so  defective  as  to  vacate  the  sale. 
Brigham  v.  Boston  &  Albany  R.  R.  Co.,  102  Mass.  14. 

5  Paine  v.  Fox,  16  Mass.  129  ;Wyman  v.  Hooper,  2  Gray,  141. 

8  N.  E.  Hospital  v.  Sohier,  115  Mass.  50. 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.        255 

vey  to  the  public  all  such  information  in  regard  to  it  as,  in 
the  judgment  of  the  executor,  is  best  calculated  to  promote 
the  interests  of  the  estate.  It  is  important  to  executors,  for 
their  own  protection,  to  preserve  evidence  of  the  fact  that 
the  notice  was  given  as  required  by  the  terms  of  the  license, 
and  the  statute  provides  a  mode  of  perpetuating  such  evi- 
dence. An  affidavit  of  the  executor  or  administrator,  or  uf 
the  person  employed  by  him  to  give  such  notice,  filed 
and  recorded  with  a  copy  of  the  notice  in  the  registry  of 
probate,  or  such  affidavit  made  by  any  person  and  filed 
and  recorded  with  such  copy  by  permission  of  the  court 
upon  satisfactory  evidence  that  the  notice  was  given  as  or- 
dered, sball  be  admitted  as  evidence  of  the  time,  place, 
and  manner  in  which  the  notice  was  given.^  The  fact  may 
be  proved  by  other  evidence;^  but  it  may  be  difficult  or 
impossible  for  the  executor,  after  the  lapse  of  years,  in  case 
a  question  is  raised  upon  the  covenants  in  his  deed,  to 
obtain  such  other  evidence.  In  the  absence  of  all  evidence 
that  such  notice  was  given,  there  is  no  presumption  within 
thirty  years  that  it  was  given.  ^  The  affidavit,  therefore, 
should  be  filed  in  all  cases. 

Where  the  affidavit  of  the  notice  of  the  sale  of  real  estate 
has  not  been  filed  in  the  probate  court,  and  such  affidavit 
cannot  be  obtained,  the  probate  court  may,  upon  petition  of 
any  person  interested  in  real  estate,  the  title  to  which  may 
be  affected  thereby,  setting  forth  the  particular  failure  com- 
plained of  and  averring  that  the  affidavit  cannot  now  be 
obtained,  order  notice  by  publication  to  creditors  of,  and 

1    R.  L.  c.  146,  §  15. 

^  The  fact  that  notice  has  been  given  as  ordered  may  be  proved 
by  the  affidavit  of  persons  other  than  the  executor  or  administrator, 
or  the  person  employed  by  him  to  give  such  notice,  by  permission  of 
the  probate  court  after  satisfactory  evidence.     11.  L.  c.  146,  §  15. 

8  Thomas  v.  Le  Baron,  8  Met.  355. 


256       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

otliers  interested  in,  the  estate  in  settlement  of  which  the 
failure  complained  of  occurred. 

Upon  return  of  such  notice  and  after  hearing,  if  the  court 
is  satisfied  that  notice  was  in  fact  given,  it  may  make  a 
decree  that  such  notice  was  in  fact  given.^ 

Adjournment  of  the  Sale.  —  If  at  the  time  appointed  for 
the  sale  the  executor  or  administrator  deems  it  for  the 
interest  of  all  persons  concerned  that  the  sale  be  post- 
poned, he  may  adjourn  it  for  any  time  not  exceeding  four- 
teen days.  Notice  of  such  adjournment  must  be  given  by  a 
public  declaration  at  the  time  and  place  first  appointed  for 
making  the  sale ;  and  if  the  adjournment  is  for  more  than 
one  day,  further  notice  of  the  sale  must  be  given  by  posting 
or  publishing,  as  time  and  circumstances  may  admit.  ^ 

TJie  Sale  must  be  by  public  auction,  unless  otherwise 
ordered,  and  must  be  conducted  with  a  view  to  insure  an 
unrestrained  and  honest  competition  among  bidders,  and 
thus  to  procure  the  highest  price  for  the  land.  When  it 
appears  by  the  petition  of  an  executor  or  administrator  for 
a  license  to  sell  the  real  estate  of  the  deceased,  and  upon  a 
hearing  on  such  petition,  that  an  advantageous  offer  for  the 
purchase  thereof  has  been  previously  made  to  the  petitioner, 
and  that  the  interest  of  all  parties  concerned  will  be  best 
promoted  by  an  acceptance  of  such  offer,  the  court  having 
jurisdiction  of  such  petition  may  authorize  a  sale  and  convey- 
ance at  private  sale,  in  accordance  with  such  offer,  or  upon 
such  terms  as  may  be  adjudged  best ;  but  an  executor  or 
administrator  so  authorized  to  sell  real  estate  at  private 
sale  may  notwithstanding  sell  such  estate  by  public  auction 
if  he  deems  it  best  so  to  do.  ^     The  executor  or  administra- 

1  R.  L.  c.  148,  §  26.  2  R.  L.  c.  146,  §  16. 

3  Ibid.  §  9. 

An  agreement  by  an  administrator  or  guardian  to  offer  the  real  es- 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.       257 

tor  making  the  sale  cannot  properly  become  the  purchaser, 
directly  or  indirectly,  though  if  it  is  purchased  by  him  under 
color  of  a  sale  to  some  other  person,  the  sale  is  not  absolutely 
void ;  strangers  to  the  property  cannot  call  it  in  question, 
but  it  is  voidable  at  the  pleasure  of  the  heirs  of  the  de- 
ceased. ^  The  heirs  are  not  obliged  to  act  jointly  in  avoid- 
ing the  sale,  but  each  one  has  an  individual  election.  ^  If 
the  land  is  subsequently  sold  to  a  bona  fide  purchaser  who 
had  no  notice  that  it  had  been  bought  at  the  administrator's 
sale  for  the  administrator's  benefit,  such  purchaser  will  hold 
it  as  against  the  heirs,  though  the  sale  might  have  been 
avoided  by  a  suit  agaifist  the  first  grantee,  or  one  claim- 
ing under  him,  who  had  notice  of  the  irregularity.^  The 
same  rule  applies  in  cases  of  sales  of  land  by  guardians. 

The  essential  particulars  to  which  the  purchaser  ought 
to  look,  in  order  to  protect  himself  against  suits  by  the 
heirs,  are  specified  in  the  statute.  He  is  not  called  upon 
to  inform  himself  as  to  every  particular  connected  wnth 
the  administrator's  or  guardian's  proceedings.  He  is  not 
expected,  for  instance,  to  inquire  whether  or  not  the  admin- 
istrator obtained  his  license  to  sell  by  a  false  representation 
as  to  the  condition  of  the  estate.     That  is  a  matter  in 

tate  of  his  intestate  or  ward  for  sale  by  auction,  and  to  sell  the  same 
to  a  particular  individual  for  an  agreed  price,  provided  no  higher  sum 
should  be  bid,  is  valid.  But  such  an  agreement  to  sell  the  estate  at  a 
fixed  price,  without  regai'd  to  the  biddings,  is  void.  Huut  v.  Frost, 
4  Cush.  .54. 

1  Blood  V.  Hayman,  13  Met.  231 ;  Jennison  v.  Hapgood,  7  Pick.  1 ; 
Harrington  v.  Brown,  5  Pick.  519;  Wyman  v.  Hooper,  2  Gray,  141; 
Robbins  v.  Bates,  4  Cush.  104 ;  Ives  v.  Ashley,  97  Mass.  198 ;  Den- 
holm  V.  McKay,  148  Mass.  441,  and  cases  cited.  See  Yeackel  v.  Litch- 
field, 13  Allen,  417;  O'Reiley  v.  Bevington,  155  Mass.  72;  Goodell  v. 
Goodell,  173  Mass.  146. 

2  Litchfield  v.  Cudworth,  15  Pick.  23. 

3  Blood  V.  Hayman,  13  Met.  231 ;  Wyman  v.  Hooper,  2  Gray,  141. 

17 


258       PEOCEEDINGS  IN  THE  PROBATE  COURTS. 

which  the  heirs  are  directly  concerned,  and  they  have  a 
remedy  against  an  unfaithful  administrator  on  his  bond. 
The  statute  provides  that  no  sale  of  real  estate  made  by  an 
executor,  administrator,  guardian,  or  trustee,  or  other  per- 
son by  license  of  court,  and  no  title  under  such  a  sale,  shall 
be  avoided  for  the  reason  that  the  deed  was  not  delivered 
within  one  year  after  the  license,  or  on  account  of  any 
irregularity  in  the  proceedings,  if  it  appears, — 

Firsts  That  the  license  was  granted  by  a  court  of  compe- 
tent jurisdiction; 

Second,  That  the  person  licensed  gave  a  bond  which  was 
approved  by  the  judge  of  the  probate  court,  if  a  bond 
was  required  upon  the  granting  of  the  license ;  ^ 

Third,  That  the  notice  of  the  time  and  place  of  sale 
was  given  according  to  the  order  of  the  court ;  and. 

Fourth,  That  the  property  was  sold  by  public  auction 
in  accordance  with  the  notice,  and  is  held  by  one  who 
purchased    it   in   good   faith.^     If,    however,   in   any    par- 

1  When  a  license  or  authority  for  the  sale  or  mortgage  of  real  es- 
tate is  granted  to  an  executor,  administrator,  guardian,  or  trustee,  no 
special  bond  shall  be  required;  but  if  the  bond  given  by  such  execu- 
tor, administrator,  guardian,  or  trustee,  upon  his  appointment,  ap- 
pears to  the  court  to  be  insufficient,  it  shall,  before  granting  such 
license  or  authority,  require  an  additional  bond  containing  the  same 
conditions  as  are  required  in  the  bond  to  be  given  upon  the  appoint- 
ment of  such  executor,  administrator,  guardian,  or  trustee.  R.  L. 
c.  149,  §  13. 

2  R.  L.  c.  148,  §  19.  A  sale  by  an  executrix  was  held  valid  al- 
though she  was  described  in  the  license,  bond,  and  deed  as  "  admin- 
istratrix on  the  estate."  Cooper  v.  Robinson,  2  Cush.  184;  Brigham 
V.  Boston  &  Albany  R.  R.  Co.,  102  Mass.  14;  Gregson  v.  Tnson,  153 
Mass.  3-26.  The  statute  does  not  prohibit  a  trustee  from  making  a 
sale  after  the  lapse  of  a  year  from  the  granting  of  his  license,  except 
by  public  auction.  The  word  "  trustee"  seems  to  have  been  used  in 
the  statute  inadvertently.  Boston  Safe  Deposit  Co.  v.  Mixter,  146 
Mass.   105. 

A  license  granted  after  the  claims  against  the  estate  have  become 


SALES    OF   LANDS    BY   EXECUTOKS,   ETC.  259 

ticiilar  the  purcliaser  is  guilty  of  any  collusion  with  the 
administrator,  or  has  notice  of  any  material  defect  in  the 
proceedings,  though  it  be  in  something  into  which  he  was 
not  bound  to  inquire,  he  will  not  be  protected  by  this  pro- 
vision of  the  statute.^ 

"  If  the  validity  of  a  sale  is  drawn  in  question  by  a 
person  who  claims  adversely  to  the  title  of  the  deceased  or 
of  the  ward,  or  who  claims  under  a  title  that  is  not 
derived  from  or  through  the  deceased  or  the  ward,  the 
sale  shall  not  be  void  on  account  of  any  irregularity  in 
the  proceedings,  if  the  executor,  administrator,  guardian, 
or  trustee  was  licensed  to  make  the  sale  by  a  court  of 
competent  jurisdiction  and  executed  and  acknowledged 
in  legal  form  a  deed  for  the  conveyance  of  the  property."  ^ 
The  question  at  issue  in  such  a  suit  is  not  whether  the 
claimant's  title  is  better  than  that  of  the  administrator's 
vendee,  but  whether  it  is  better  than  that  of  the  deceased 
person  or  ward.  If  he  shows  a  better  title,  he  will  recover, 
notwithstanding  the  conveyance  by  the  administrator ;  but 
if  he  has  not  a  better  title  than  that  of  the  deceased  person 
or  ward,  it  is  no  concern  of  his  whether  the  land  goes  to  the 
heirs  or  to  the  person  who  holds  under  the  administrator. 
The  particular  proceedings  of  the  administrator  or  guardian 
are  therefore  not  material  in  such  a  suit.^ 

barred  by  the  special  statute  of  limitations  is  void.  Tarbell  v.  Parker, 
106  Mass.  3i7.     See  also  Gregson  v.  Tuson,  153  Mass.  o26. 

A  guardian  who  acts  as  auctioneer  in  selling  land  of  his  ward  is 
not  authorized  to  sign  a  memorandum  in  writing,  to  take  the  sale  out 
of  the  statute  of  frauds.     Bent  v.  Cobb,  9  Gray,  397. 

1  Dickinson  v.  Durfee,  139  Mass.  232.  Even  where  due  notice  is 
not  given,  a  sale  may  be  confirmed.  Nott  v.  Sampson  j\Ianufacturing 
Co.,  142  Mass.  479.  ' 

2  R.  L.  c.  148,  §  20.  All  objections  in  other  respects  are  open. 
Walker  v.  Fuller,  147  Mass.  491. 

3  Actions  for  the  recovery  of  lands  sold  by  executors  and  admiuis- 


260       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Ev^ery  person  licensed  to  sell  lands  is  required,  upon 
application  to  the  probate  court  by  an  heir,  creditor, 
ward,  or  other  person  interested  in  the  estate,  to  make 
answer  upon  oath  to  all  matters  touchinj^  his  exercise  and 
fulfilment  of  the  license,  as  fully  as  he  is  liable  to  account 
and  be  examined  relative  to  personal  property.  If,  in  re- 
lation to  the  exercise  of  such  license  or  the  sale  under  it, 
there  is  any  neglect  or  misconduct  in  his  proceedings  by 
which  a  person  interested  in  the  estate  suffers  damage, 
such  interested  person  may  recover  compensation  there- 
for on  the  probate  bond  or  otherwise  as  the  case  may 
require.^ 

The  Deed.  —  In  his  deed  to  the  purchaser  of  the  real 
estate,  the  executor,  administrator,  or  guardian  covenants 
with  his  grantee  that,  in  making  the  sale,  he  was  duly 
authorized  by  the  court ;  that  he  has  complied  with  the 
order  of  the  court  by  giving  the  bond  required  by  law, 
and  by  giving  notice  of  the  time  and  place  of  the  sale  ; 
and  that  he  has  in  all  things  observed  the  rules  and  di- 
rections of  law  relative  thereto.  The  date  of  the  decree 
of  the  court  granting  the  license  should  also  be  stated 
in  the  deed.^ 

trators  must  be  commenced  within  five  years  after  the  sale;  and  for 
lands  sold  by  guardians,  within  five  years  after  the  termination  of  the 
guardianship ;  except  that  persons  out  of  the  estate  or  under  legal 
disability  to  sue  at  the  time  when  the  right  of  action  first  accrues,  may 
commence  an  action  within  five  years  after  the  removal  of  the  disa- 
bility or  their  return  to  the  state.  No  entry,  unless  by  judgment  of 
law,  can  be  made  upon  the  land  sold,  with  a  view  to  avoid  the  sale, 
unless  within  the  time  of  limitation.  R.  L.  c.  148,  §  22.  A  remain- 
der-man, during  the  continuance  of  the  life  estate,  is  under  legal 
disability  within  the  meaning  of  the  statute.  Jewett  v.  Jewett,  10 
Gray,  31. 

1  R.  L.  c.  148,  §  11. 

*  An  administrator's  deed  is  not  rendered  invalid  by  a  misrecital 


SALES    OF   LANDS    BY    EXECUTORS,    ETC.  261 

The  executor  or  other  person  selling  land  under  license 
is  not  required  b}^  any  duty  of  his  office  to  enter  into  a 
personal  covenant  for  the  absolute  perfection  of  the  title 
which  he  undertakes  to  convey,  or  for  the  validity  of  the 
conveyance  beyond  his  own  acts.  He  is  at  liberty  to  do 
so,  if  he  chooses  thus  to  excite  the  confidence  of  pui*- 
chasers  and  enlarge  the  proceeds  of  the  sale  ;  and  he  may 
engage  his  own  credit  collaterally  in  the  conveyance.  l>ut 
such  covenant,  although  expressed  to  be  made  in  his  offi- 
cial capacity,  is  necessarily  a  personal  covenant,  for  the 
breach  of  which  he  is  personally  liable.^ 

In  every  sale  of  the  real  estate  of  a  deceased  person  or 
of  a  ward  by  an  executor,  administrator,  or  guardian,  the 
surplus  of  the  proceeds  remaining  on  the  final  settlement 
of  the  accounts  shall  be  considered  as  real  estate,  and 
shall  be  disposed  of  to  the  same  persons  and  in  the  same 
proportions  to  whom  and  in  which  the  real  estate  if  not 
sold  would  have  descended  or  been  disposed  of  by  the  laws 
of  this  commonwealth.  ^ 

of  the  time  when  the  license  was  granted,  if  it  also  contains  a  recital 
of  other  facts  which  show  that  the  sale  was  made  under  the  true 
license.  Thomas  i\  LeBaron,  8  Met.  355.  The  deed  need  not  state 
the  reason  for  granting  the  license.     Sowle  v.  Sowle,  10  Pick.  376. 

1  Sumner  v.  Williams,  8  Mass.  201;  Chilson  v.  Adams,  6  Gray, 
364.  If  there  should  be  a  surplus  after  a  sale  for  the  payment  of 
debts,  it  is  to  be  distributed  like  real  estate.  Hovey  v.  Dary,  154 
Mass.  11.  An  administrator  who  recovers  judgment  as  such,  and 
levies  execution  on  land,  holds  the  legal  estate  in  the  land  to  the  use 
of  the  heirs  of  his  intestate;  and  if  he  sells  and  conveys  it  without 
having  obtained  license  to  do  so,  the  conveyance  can  be  avoided  only 
by  those  for  whose  use  he  was  seised,  and  if  they  receive  the  proceeds 
of  the  sale,  they  thereby  confirm  the  sale.  Thomas  v.  LeBaron,  10 
Met.  403. 

2  R.  L.  c.  148,  §  9;  Hovey  r.  Dary,  154  Mass.  11.  An  administra- 
tor authorized  by  the  probate  court  to  sell  real  estate  to  pay  the  debts 
of  the  intestate  under  a  license  to  sell  "  the  whole  of  the  estate,  or 


262  PROCEEDINGS   IN   THE    PROBATE    COURTS. 


SALES   BY   FOREIGN   EXECUTORS    AND    ADMINISTRATORS, 

"  An  executor  or  administrator  appointed  in  another 
state  or  in  a  foreign  country  on  the  estate  of  a  person  who 
was  not  at  the  time  of  his  death  a  resident  of  this  com- 
monwealth and  upon  whose  estate  administration  has  not 
heen  granted  in  this  commonwealth,  duly  qualified  and 
acting,  may  file  an  authenticated  copy  of  the  record  of  his 
appointment  and  of  his  bond  in  the  probate  court  for  any 
county  in  which  there  is  real  property  of  the  deceased  ; 
and  such  executor  or  administrator,  after  such  notice  to 
the  treasurer  and  receiver-general,  creditors,  and  all  per- 
sons interested  as  the  court  may  order,  may  be  licensed 
to  sell  said  real  property  or  an  undivided  interest  in  real 
property  in  such  manner  and  upon  such  notice  as  the  court 
orders.  But  such  license  shall  not  be  granted  unless  the 
court  finds  that  the  whole  of  the  real  property  of  the 
deceased  in  this  commonwealth  does  not  exceed  "fifteen 
hundred  dollars  in  value,  that  six  months  have  expired 
since  the  death  of  the  deceased,  that  the  executor  or  ad- 
ministrator has  given  a  sufficient  bond  and  will  be  liable 
to  account  for  the  proceeds  of  the  sale  in  the  state  or 
country  in  which  he  was  appointed,  and  that  no  creditor 
or  other  person  interested  will  be  prejudiced  thereby.  The 
net  proceeds  of  such  sale,  after  deducting  the  expenses 
thereof,   and  after   the   payment   and   satisfaction   of   all 

such  part  thereof  as  may  appear  to  be  most  for  the  interest  of  all  con- 
cerned," cannot  be  charged  as  trustee  for  money  received  from  the 
sale  before  the  sale  has  taken  place ;  because  if  he  should  decide  to 
sell  only  enough  to  pay  the  debts,  the  remainder  would  descend  to  the 
heirs,  and  would  not  be  affected  by  the  trustee  process ;  while  if  the 
heirs  should  advance  money  to  pay  the  debts,  rather  than  to  have 
their  real  estate  sold,  no  sale  would  be  likely  to  be  made.  Beverstock 
r.  Brown,  157  Mass.  565. 


SALES  OF  LANDS  BY  GUARDIANS.         263 

claims  against  said  estate  in  this  commonwealth,  may  be 
taken  by  said  foreign  executor  or  administrator  out  of  this 
commonwealth  to  be  accounted  for  in  the  court  in  which 
he  received  his  appointment."  ^ 

Every  foreign  executor  or  administrator  licensed  to  sell 
real  estate  must  give  notice  of  the  time  and  place  of  sale, 
and  otherwise  proceed  as  is  prescribed  for  an  administra- 
tor appointed  here  when  making  such  sale  ;  and  the  evi- 
dence of  such  notice  may  be  perpetuated  in  the  same 
manner.2 

SALES   BY   GUARDIANS. 

For  the  Payment  of  Debts.  —  When  the  personal  estate 
in  the  hands  of  a  guardian  is  insufficient  to  pay  all  the 
debts  of  the  ward,  with  the  charges  of  managing  his 
estate,  the  guardian  may  be  licensed  to  sell  the  ward's 
real  estate  for  that  purpose,  by  the  probate  court  for  the 
county  in  which  he  is  appointed,  or  by  the  supreme  judicial 
court,  or  superior  court  in  any  county.  ^  The  guardian 
must  proceed  by  petition,  and  the  petition  may  be  sub- 
stantially in  the  same  form  as  that  of  an  executor  or 
administrator  who  applies  for  leave  to  sell  real  estate  for 
the  payment  of  debts.  *  It  must  appear  that  a  necessity 
exists  for  the  sale  proposed. 

If  it  is  represented  in  the  petition  and  appears  necessary 
to  sell  some  part  of  the  real  estate  of  the  ward,  and  that 
by  such  partial  sale  the  residue  of  the  estate,  or  of  some 
specific  piece  or  part  thereof,  would  be  greatly  injured,  the 

1  R.  L.  c.  146,  §  30.  2  Ibid,  §  33. 

8  The  legislature  may  license  the  sale  of  the  real  estate  of  minors, 
notwithstanding  they  have  delegated  the  same  power  to  the  judicial 
courts.  Rice  v.  Parkman,  16  Mass.  326;  Forster  y.  Forster,  129  Mass. 
564,  and  cases  cited. 

4  R.  L.  c.  146,  §  5. 


264       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

court  may  license  a  sale  of  the  whole  of  the  estate,  or  of 
such  part  thereof  as  may  appear  best.  ^ 

For  Maintenance  or  Investment,  —  When  the  income  of 
a  ward's  estate  is  insufficient  to  maintain  him  and  his 
family,  or  when  it  appears  that  it  would  be  for  the  benefit 
of  a  ward  that  his  real  estate  or  any  part  thereof,  or  any 
standing  or  growing  wood  thereon,  should  be  sold,  and  the 
proceeds  put  out  at  interest  or  invested  in  some  productive 
stock,  his  guardian  may  be  licensed  to  sell  the  same. 

When  standing  or  growing  wood  is  so  sold,  the  guardian 
may  grant  to  the  purchaser  the  privilege  of  entering  upon 
the  land  and  cutting  and  carrying  away  such  wood  within 
such  time  as  tlie  guardian  may  allow.  ^ 

The  guardian  may  be  licensed  to  sell  the  ward's  estate 
of  homestead.  ^ 

A  father  is  bound,  to  the  extent  of  his  ability,  to  support 
his  minor  child ;  but  if  the  minor's  property  is  sufficient 
for  his  maintenance  and  education  in  a  more  expensive 
manner  than  his  father  can  reasonably  afford,  regard  being 
had  to  the  situation  of  the  father's  family,  and  to  all  the 
circumstances  of  the  case,  the  expenses  of  the  mainte- 
nance and  education  of  such  child  may  be  defrayed  out  of 
his  own  property,  in  whole  or  in  part,  as  shall  be  deemed 
reasonable  by  the  probate  court ;  and  when  necessary,  his 
real  estate  may  be  sold  for  that  purpose  by  the  guardian 
under  license.  * 

To  obtain  such  license,  the  guardian  must  present  to  the 
court  a  petition  setting  forth  the  condition  of  the  estate 

1  R.  L.  c.  146,  §  7.  As  a  general  rule,  executors,  admiuistrators, 
and  guardians  can  be  licensed  to  sell  only  at  public  auction.  Boston 
Safe  Deposit  Co.  v.  Mixter,  146  Mass.  105. 

2  R.  L.  c.  146,  §  19;  Boston  Safe  Deposit  Co.  v.  Mixter,  supra. 
»  R.  L.  c.  131,  §  10.  *  R.  L.  c.  145,  §  29. 


SALES  OF  LANDS  BY  GUARDIANS.  265 

and  the  facts  and  circumstances  upon  which  his  applica- 
tion is  founded.  If  after  a  full  examination,  on  the  oath 
of  the  petitioner  or  otherwise,  it  appears  either  that  it  is 
necessary,  or  that  it  would  be  for  the  benefit  of  the  ward, 
that  the  sale  petitioned  for  should  be  made,  the  court  may 
graut  a  license  therefor,  specifying  therein  whether  the  sale 
is  to  be  made  for  the  maintenance  of  the  ward  and  his  fam- 
ily, or  that  the  proceeds  may  be  put  out  and  invested.  ^ 

The  property  of  a  minor  may  be  sold  for  the  purpose  of 
investing  the  proceeds  upon  the  petition  of  the  guardian  or 
of  any  friend  of  the  minor  ;  and  the  court  may  autborize 
the  guardian  or  any  other  suitable  person  to  sell  and  con- 
vey the  property.  The  statute  provisions  in  relation  to 
the  licenses  and  sales  on  the  petitions  of  guardians  apply 
to  licenses  and  sales  on  the  petition  of  a  friend  of  the 
minor,  except  that,  upon  a  sale  by  a  person  other  than 
the  guardian,  the  proceeds  are  to  be  forthwith  paid  to 
the  guardian  upon  his  giving  to  the  judge  of  probate  a 
bond,  with  sufficient  sureties,  conditioned  to  account  for 
such  proceeds.  If  there  is  no  guardian,  the  proceeds  are 
required  to  be  placed  on  interest  or  invested  by  the  person 
authorized  to  sell  the  estate,  in  like  manner  as  is  required 
of  a  guardian.  ^ 

No  license  can  be  granted  to  a  guardian  until  after 
notice,  by  public  advertisement  or  otherwise,  as  the  court 
shall  order,  to  the  next  of  kin  of  the  ward,  to  all  his  heirs 
apparent  or  presumptive,  and  to  all  persons  interested  in 
the  estate  ;  but  such  notice  may  be  dispensed  with,  if  all 
persons  interested  signify  in  writing  their  assent  to  the 
sale.  All  who  are  next  of  kin,  and  heirs  apparent  or  pre- 
sumptive of  the  ward,  are  considered  by  the  statute  as 

1  R.  L.  c.  146,  §  20.  2  Ibid.  §§  23,  24. 


266       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

interested  in  the  estate,  and  may  appear  as  such  and 
answer  to  the  petition  of  the  guardian.^ 

No  license  to  sell  can  be  granted  to  the  guardian  of  an 
insane  person  or  spendthrift  unless  seven  days'  notice  of 
the  petition  therefor  has  been  given  to  the  overseers  of  the 
poor  of  the  place  where  the  ward  is  an  inhabitant  or 
resides.  The  notice  may  be  served  upon  any  one  of  the 
overseers.  This  provision  does  not  apply  when  the  ward 
resides  out  of  this  state.^ 

Guardians  are  required  to  give  notice  of  the  time  and 
place  of  sale,  and  otherwise  proceed  as  prescribed  in  like 
cases  for  executors  and  administrators  except  when 
licensed  to  sell  fractional  shares  at  private  sale  ;  and  the 
evidence  of  giving  notice  may  be  perpetuated  in  the  same 
manner.^ 

If  the  sale  is  made  for  the  maintenance  of  the  ward  and 
his  family,  the  guardian  is  required  to  apply  the  proceeds, 
so  far  as  necessary  for  that  purpose,  and  to  put  out  the 
residue  at  interest,  or  invest  it  in  the  best  manner  in  his 
power,  until  the  capital  is  wanted  for  such  maintenance  ; 
in  which  case  the  capital  may  be  used  for  that  purpose  in 
like  manner  as  if  it  had  been  personal  estate.^ 

If  the  estate  is  sold  in  order  to  put  out  on  interest  or 

^  R.  L.  c.  146,  §  11 ;  c.  162,  §  45  ;  Dexter  v.  Cotting,  149  Mass.  92  ; 
Browne  v.  Doolittle,  151  Mass.  595. 

2  R.  L.  c.  146,  §  13. 

'  Ibid.  §§  14,  15.  A  sale  of  a  minor's  real  estate  by  a  guar- 
dian is  void  if  no  deed  thereof  is  delivered  or  executed  until  the 
expiration  of  a  year  from  the  date  of  the  license,  and  no  money  there- 
for has  been  paid  to  the  guardian.  Richmond  v.  Gray,  3  Allen,  25. 
The  guardian  of  a  spendthrift  will  be  held  responsible  for  all  losses 
arising  in  consequence  of  the  disregard  of  the  terms  of  his  license, 
and  the  ward's  assent  to  his  acts  will  not  exonerate  him.  Harding  v. 
Lamed,  4  Allen,  426. 

*  R.  L.  c.  146,  §  21. 


SALES   OF   LANDS   BY    GUARDIANS.  267 

invest  the  proceeds,  the  guardian  is  required  to  make  the 
investment  according  to  his  best  judgment,  or  in  pursuance 
of  any  order  that  may  be  made  relating  thereto  by  the 
court.  1  He  has  no  right  to  apply  the  proceeds  towards  the 
support  of  the  ward  unless  a  necessity  therefor  arises  after 
the  granting  of  the  license.  ^ 

When  the  guardian  of  a  married  man  is  licensed  to  sell 
real  estate  of  his  ward,  the  wife  of  the  ward  may  join  with 
the  guardian  in  the  conveyance,  and  thereby  release  her 
right  of  dower  and  the  estate  or  right  of  homestead,  in 
like  manner  as  she  might  have  done  by  joining  in  a  con- 
veyance made  by  her  husband  if  he  had  been  under  no 
legal  disability.^ 

If  the  wife  so  releases  her  right  of  dower  or  an  estate  of 
homestead,  or  so  conveys  her  own  estate,  the  proceeds  of 
the  sale  may  be  so  invested  and  disposed  of  as  to  secure  to 
her,  and  to  the  minor  children  of  the  owner  if  it  is  an 
estate  of  homestead,  the  same  rights  in  the  principal  and 
the  income  thereof  as  she  or  they  would  have  had  therein 
if  it  had  not  been  sold.  An  agreement  made  between  her 
and  the  guardian  for  securing  and  disposing  of  the  pro- 
ceeds, or  of  any  part  thereof,  for  the  purpose  aforesaid, 
if  approved  by  the  probate  court  for  the  county  in  which 
the  guardian  was  appointed,  or  by  the  supreme  court  of 
probate  upon  appeal,  or,  in  default  of  an  agreement  be- 
tween her  and  the  guardian  approved  as  aforesaid,  an  order 
therefor  made  by  the  probate  court  shall  be  valid  and 
binding  on  all  persons  interested  in  the  granted  property 
or  in  said  proceeds,  and  may  be  enforced  by  the  court  or 
by  an  action  at  law.  * 

1  R.  L.  c.  146,  §  22.  2  Strong  v.  Moe,  8  Allen,  125. 

8  R.  L.  c.  153,  §  15. 

*  Ibid.  §  17.     A  sale  to  the  attorney  of  the  guardian  who  recon- 


268       TROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  the  guardian  of  an  insane  wife  is  authorized  under  the 
provisions  of  section  19  of  chapter  153  of  the  Revised  Laws 
to  release  the  dower  of  his  ward  or  an  estate  of  homestead, 
and  the  probate  court  deems  it  proper  that  some  portion  of 
the  proceeds  of  such  real  property,  or  of  a  sum  loaned  on 
mortgage  thereof,  should  be  reserved  for  the  use  of  the 
ward,  the  court  may  order  that  in  the  case  of  dower,  a 
certain  sum  not  exceeding  one-third  of  the  net  amount  of 
such  proceeds,  exclusive  of  any  encumbrance  then  existing 
on  the  estate,  shall  be  paid  over  to  such  guardian  to  be 
invested  and  held  by  him  for  the  benefit  of  the  wife  if  she 
survives  her  husband,  the  income  of  such  sum  to  be  en- 
joyed by  the  husband  during  the  life  of  his  wife,  or  until 
otherwise  ordered  by  the  court  upon  good  cause  shown  ; 
and  the  principal  to  be  his,  and  to  be  paid  over  to  him,  if 
he  survives  her;  in  case  an  estate  of  homestead  is  released, 
a  certain  sum,  not  exceeding  eight  hundred  dollars,  shall 
be  set  aside  and  paid  over  to  such  guardian  to  be  invested 
in  a  homestead,  and  held  by  him  for  the  benefit  of  his 
ward  if  she  survives  her  husband  ;  the  rent  or  use  thereof 
to  be  received  and  enjoyed  by  the  husband  during  the  life 
of  his  wife,  or  until  otherwise  ordered  by  the  court  upon 
good  cause  shown ;  and  the  homestead  to  be  his,  and  to  be 
conveyed  to  him  to  said  guardian,  if  he  survives  her.  ^ 

The  husband  or  wife  of  an  insane  person  who  desires  to 
convey  his  or  her  real  property,  absolutely  or  by  w^ay  of 
mortgage,  may  file  a  petition  in  the  probate  court  describ- 
ing such  real  property  and  praying  that  the  dower  of  the 
wife  or  an  estate  of  homestead  or  a  tenancy  by  the  curtesy 
at  common  law  or  by  statute  of  the  husband  therein  may 

veyed  to  the   guardian,  and  no  money   passed  between   them,  may  be 
voided  by  the  persons  interested.     Walker  v.  Walker,  101  Mass.  169. 
1  R.  L.  c.  153,  §§  21,  22. 


SALES  OF  LANDS  BY  GUARDIANS.  269 

be  released,  setting  forth  the  facts  and  reasons  why  the 
prayer  of  the  petition  should  be  granted.  The  court  may, 
after  notice  and  a  hearing,  by  a  decree  authorize  the 
guardian  of  the  insane  person  to  make  such  release  by 
joining  in  any  deed  or  deeds,  mortgage  or  mortgages  of 
the  whole  or  a  part  of  said  real  property  which  is  or  are 
made  within  five  years  after  said  decree  either  by  the  hus- 
band or  wife  of  the  insane  person  or  by  a  trustee  for  such 
husband  or  wife.  ^ 

When  the  husband  or  wife  of  an  insane  person  has  con- 
veyed real  property  in  trust  without  a  power  of  revocation, 
and  makes  a  provision  in  such  conveyance  for  the  insane 
husband  or  wife,  respectively,  which  the  probate  court, 
upon  petition,  after  notice  and  a  hearing,  finds  is  suffi- 
cient in  lieu  of  curtesy  or  dower,  the  trustee  may  con- 
vey such  real  property  free  from  all  right  of  curtesy  or 
dower.  ^ 

When  a  guardian  is  licensed  to  sell  the  interest  of  the 
ward  in  any  real  estate  of  his  wife,  the  wife  may  join  with 
the  guardian  in  the  conveyance,  and  thereby  sell  and  con- 
vey all  her  estate  and  interest  in  the  granted  property 
in  like  manner  as  she  might  have  done  by  a  conveyance 
thereof  made  jointly  with  her  husband,  if  he  had  been 
under  no  legal  disability.  ^ 

When  a  person  under  guardianship,  having  a  guardian 
appointed  within  the  commonwealth,  removes  or  resides 
out  of  the  commonwealth,  such  guardian  may  sell  the  real 
estate  of  his  ward,  and  transfer  and  pay  over  the  whole  or 
any  part  of  the  proceeds,  and  the  whole  or  any  part  of  the 
ward's  personal  estate,  to  a  guardian,  trustee,  or  committee 
appointed  by  competent  authority  in  the  state  or  country 
within  which  the  ward  resides,  upon  such  terms  and  in 

1  K.  L.  c.  153,  §  19.  2  jbid.  §  23.  "  Ibid.  §  16. 


270       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

such  manner  as  the  probate  court  for  any  county  in  which 
any  such  real  or  personal  estate  is  found  may  decree  upon 
petition  filed  therefor,  and  after  notice  given  to  all  parties 
interested.  ^ 

BALE  OF  REAL  ESTATE  AT  PRIVATE  SALE. 

When  it  appears,  by  the  petition  of  the  guardian  for  a 
license  to  sell  the  real  estate  of  his  ward,  and  upon  the 
hearing  thereon,  that  an  advantageous  offer  has  been  pre- 
viously made  to  the  guardian  fur  the  purchase  thereof,  and 
that  the  interest  of  all  parties  concerned  will  be  best  pro- 
moted by  an  acceptance  of  such  offer,  the  court  may  au- 
thorize the  sale,  at  private  sale  in  accordance  with  the  offer, 
or  upon  such  terms  as  may  be  adjudged  best,  with  or  with- 
out public  notice.  The  guardian  so  licensed  may  sell  at 
public  auction,  if  he  deems  it  best  so  to  do.^ 

SALES   BY   FOREIGN   GUARDIANS. 

"  If  a  minor,  insane  person,  or  spendthrift,  who  resides 
out  of  this  commonwealth,  is  under  guardianship  in  the 
state  or  country  in  which  he  resides,  and  has  no  guardian 
appointed  in  this  commonwealth,  the  foreign  guardian  may 
file  an  authenticated  copy  of  his  appointment  in  the  pro- 
bate court  for  any  county  in  which  there  is  real  prop- 
erty of  the  ward  ;  after  which,  upon  petition,  he  may  be 
licensed  to  sell,  mortgage,  or  lease  the  real  property  of 
the  ward  in  any  county,  for  the  purposes,  in  the  manner, 
and  upon  the  terms  provided  in  this  chapter  (R.  L. 
c.  147)  for  a  guardian  appointed  in  this  commonwealth, 
except  as  hereinafter  provided. 

"  If  the  court  finds  that  such  foreign  guardian  has  given 

1  R.  L.  c.  146,  §  25. 

2  Ibid.  §  9 ;  Boston  Safe  Deposit  Co.  v.  Mixter,  146  Mass.  105. 


SALES   OF  LANDS   BY   PQBLIC   ADMINISTKATOKS.         271 

bond  with  sufficient  surety  or  sureties,  in  the  state  or  coun- 
try in  which  he  was  appointed,  to  account  for  the  proceeds 
of  such  sale,  mortgage,  or  lease,  and  if  an  authenticated 
copy  of  such  bond  is  filed  in  said  court,  no  further  bond 
shall  be  required  ;  otherwise,  before  such  license  is  granted, 
he  shall  give  bond,  payable  to  the  judge  of  said  court 
and  his  successors,  with  sufficient  surety  or  sureties,  and 
with  condition  to  account  for  and  dispose  of  said  proceeds 
according  to  law."  ^ 

All  proceedings  in  probate  courts  respecting  sales  by 
a  foreign  executor,  administrator,  or  guardian  are  had  in 
the  county  in  which  an  authenticated  copy  of  his  appoint- 
ment is  first  filed.  ^ 

SALES   BY   PUBLIC    ADMINISTEATOKS. 

Public  administrators  may  be  licensed  to  sell  real  estate 
for  the  payment  of  debts.  The  petition  for  such  sale  and 
the  proceedings  thereon,  and  under  the  license,  are  the 
same  as  are  prescribed  for  other  administrators.^ 

Sales  by  public  administrators  are  not  limited  to  cases 
where  the  sales  are  necessary  for  the  payment  of  debts. 
The  statute  provides  that  after  three  years  from  the  date 
of  letters  of  administration  to  a  public  administrator,  the 
probate  court  may,  if  it  appears  to  be  for  the  interest  of 
all  concerned,  authorize  the  administrator  to  sell  the  real 
estate  of  the  deceased,  although  such  sale  is  not  necessary 
for  the  payment  of  debts.  In  such  case  the  public  admin- 
istrator proceeds  in  the  same  manner  as  is  required  of 
administrators  when  licensed  to  sell  real  estate  for  the 
payment  of  debts.* 

1  R.  L.  c.  146,  §§  31,  32.  «  R.  L.  c.  148,  §  7. 

8  R.  L.  c.  138,  §  10.  •»  R.  L.  c.  138,  §  11. 


272  PROCEEDINGS   IN    THE   PKOBATE    COURTS. 


RELEASE   OF   INTERESTS    IN   LAND  BY  EXECUTORS   AND    OTHERS. 

Executors,  administrators,  guardians,  and  trustees  may 
be  authorized  by  probate  courts  to  release  and  discharge, 
upon  such  terms  and  conditions  as  may  appear  to  be 
proper,  a  vested,  contingent,  or  possible  right  or  interest 
belonging  to  the  persons  or  estates  by  them  represented  in 
or  to  real  property,  when  such  release  or  discharge  appears 
to  be  for  the  benefit  of  such  persons  or  estates.^ 

This  provision  does  not  apply  to  sales  of  the  land  itself, 
and  has  not  any  reference  to  sales  of  land  by  executors 
and  administrators  for  the  payment  of  debts  and  legacies, 
nor  to  sales  by  guardians  for  maintenance  or  investment. 
Leave  to  release  the  remote  interests  mentioned  in  the 
statute  may  be  granted,  when  it  appears  to  be  for  the 
benefit  of  the  parties  interested,  whether  the  proceeds  are 
necessary  for  the  payment  of  debts  and  legacies  or  not. 
The  person  applying  for  leave  to  release  such  an  interest 
should  state  in  his  petition  the  names  and  residences  of 
all  persons  interested,  and  fully  describe  the  nature  of  the 
interest  to  be  released.  The  same  notice  of  the  petition 
must  be  given  as  is  required  in  cases  of  sale  for  the  pay- 
ment of  debts.  When  leave  is  granted,  the  court  directs 
the  manner  in  which  the  release  shall  be  made. 

MORTGAGE   OP   REAL   ESTATE   BY   EXECUTORS   AND 
ADMINISTRATORS. 

The  probate  court  having  jurisdiction  of  the  estate  of  a 
deceased  person  may,  on  petition  and  after  notice  to  all 
persons  interested,  if  upon  a  hearing  it  appears  to  be  for 
the  benefit  of  such  estate,  authorize  an  executor,  adminis- 

1  R.  L.  c.  148,  §  4. 


MORTGAaE  OF  LANDS  BY  EXECUTOES,  ETC.      273 

trator  with  the  will  annexed,  or  administrator  to  mortgage 
atiy  real  estate  of  the  testator  for  the  purpose  of  paying 
debts,  legacies,  or  charges  of  administration,  or  for  the 
purpose  of  paying  an  existing  lien  or  mortgage  on  the 
estate  of  the  testator ;  or  it  may  authorize  such  executor 
or  administrator  to  make  an  agreement  for  the  extension 
or  renewal  of  such  an  existing  mortgage. 

The  petition  must  set  forth  a  description  of  the  estate 
to  be  mortgaged,  the  amount  of  money  necessary  to  be 
raised,  and  the  purposes  for  which  the  money  is  required. 
The  decree  of  the  court  fixes  the  amount  for  which  the 
mortgage  may  be  given  and  the  rate  of  interest  to  be  paid, 
and  may  order  the  whole  or  any  part  of  the  money  secured 
by  the  mortgage  to  be  paid  from  time  to  time  out  of  the 
income  of  the  premises  mortgaged.^ 

MORTGAGE   OP   REAL   ESTATE    BY   GUARDIANS. 

The  probate  court  may,  on  the  petition  of  a  guardian, 
and  if  after  due  notice  and  hearing  thereon  it  appears  to 
be  necessary  or  expedient,  authorize  the  guardian  to  mort- 
gage any  real  estate  of  his  ward.  The  guardian  must  set 
forth  in  his  petition  a  description  of  the  estate  to  be  mort- 
gaged, and  the  amount  of  money  necessary  to  be  raised. 
The  amount  for  which  the  mortgage  is  to  be  given  is  fixed 
by  the  decree  of  the  court.^ 

MORTGAGE   OF   REAL   ESTATE   BY   TRUSTEES. 

The  court  having  jurisdiction  of  a  trust  created  by  a 
written  instrument  may,  on  petition  and  after  notice  to 

1  R.  L.  c.   14G,  §§  26,  28. 

2  Ibid.  §§  27,  28.  A  guardian  of  a  ward  who  has  a  life  interest 
in  the  real  estate,  with  an  absolute  and  unrestricted  right  to  convey  the 
fee,  can  mortgage  the  estate  in  fee.     Kent  v.  Morrison,  153  Mass.  137. 

18 


274       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

all  persons  interested,  if  upon  a  hearing  it  appears  to  be 
for  tlie  benefit  of  the  trust  estate,  authorize  trustees  to 
mortgage  any  real  estate  held  by  them  in  trust,  for  the 
purpose  of  paying  sums  assessed  on  their  trust  estate  for 
betterments,  or  the  expense  of  repairs  and  improvements 
on  such  estate  made  necessary  by  such  betterments,  or  by 
the  lawful  taking  of  such  estate  or  of  a  part  thereof  by  a 
city  or  town  ;  for  the  purpose  of  paying  the  expense  of 
erecting,  altering,  completing,  repairing,  or  improving  a 
building  on  such  estate ;  or  for  the  purpose  of  paying  the 
expense  of  other  improvements  of  a  permanent  nature 
made  or  to  be  made  upon  such  estate ;  or  for  the  purpose 
of  paying  an  existing  lien  or  mortgage  on  such  trust  estate 
or  on  a  part  thereof ;  or  it  may  authorize  such  trustees  to 
make  an  agreement  for  the  extension  or  renewal  of  such 
existing  mortgage.^ 

The  petition  shall  in  such  case  set  forth  a  description 
of  tlie  estate  to  be  mortgaged,  the  amount  of  money  neces- 
sary to  be  raised,  and  the  purposes  for  which  such  money 
is  required,  and,  if  made  to  a  probate  court,  sliall  be  made 
in  the  county  where  the  trustees  were  appointed,  if  the 
trust  was  created  by  will,  or,  if  it  was  not  so  created, 
then  in  the  county  in  which  the  estate  or  some  part  of  the 
estate  which  is  the  subject  of  the  petition  is  situated. 
The  decree  of  the  court  upon  such  petition  shall  fix  the 
amount  for  which  the  mortgage  may  be  given,  and  the 
rate  of  interest  which  may  be  paid  thereon,  and  may  order 
the  interest  and  the  whole  or  any  part  of  the  money  secured 
by  the  mortgage  to  be  paid  from  time  to  time  out  of  the 
income  of  the  premises  mortgaged.  ^ 

"  If  the  sale  and  conveyance,  transfer  or  exchange  of  any 
real  or  personal  property  held  in  trust,  or  the  partition  of 

1  R.  L.  c.  147,  §  18.  «  Ibid.  §  19. 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.       275 

any  such  real  property  held  in  common  and  undivided, 
appears  to  be  necessary  or  expedient,  the  supreme  judicial 
court,  the  superior  court,  or  the  probate  court,  may,  upon 
petition  of  a  trustee  or  other  party  interested,  after  notice 
and  other  proceedings  as  hereinafter  required,  order  such 
sale  and  conveyance,  transfer,  exchange,  or  partition  to  be 
made,  and  the  investment,  re-investment,  and  application  of 
the  proceeds  of  such  sale  in  such  manner  as  will  best  effect 
the  objects  of  the  trust."  ^ 

If  it  appears  to  the  court,  upon  proceedings  under  the 
preceding  section  (R,  L,  c.  147,  §  15),  that  the  estate 
which  is  the  subject  of  the  petition  may  be  held  in  trust  for, 
or  that  a  remainder  or  contingent  interest  therein  may  be 
limited  over  to,  persons  not  ascertained  or  not  in  being, 
notice  shall  be  given  in  such  manner  as  the  court  may  order 
to  all  persons  who  are  or  may  become  interested  in  such 
estate,  and  to  all  persons  whose  issue,  not  then  in  being, 
may  become  so  interested  ;  and  the  court  shall  in  every  such 
case  appoint  a  suitable  person  to  appear  and  act  therein  as 
the  next  friend  of  all  persons  not  ascertained  or  not  in 
being,  who  are  or  may  become  interested  in  such  estate,  the 
cost  of  whose  appearance,  including  the  compensation  of  his 
counsel,  shall  be  determined  by  the  court,  and  paid,  as  it 
may  order,  either  out  of  the  trust  estate  or  by  the  peti- 
tioner, in  which  latter  case  execution  may  issue  therefor 
in  the  name  of  the  next  friend  ;  and  a  conveyance  or  trans- 
fer made  after  such  notice  and  proceedings  shall  be  con- 
clusive upon  all  persons,  whether  in  being  or  not  in  being, 
who  are  or  may  become  interested  in  the  trust,  or  to  whom 
a  remainder  or  contiugent  interest  in  the  trust  estate  may 
be  limited  over.  ^ 

1  R.  L.  c.  147,  §  15. 

2  Ibid.  §  16 ;  Boston  Safe  Deposit  Co.  v.  Mixter,  146  Mass.  100. 


276  PROCEEDINGS   IN   THE   PKOBATE   COURTS. 

SALE    AND    MORTGAGE    OF    ESTATES    SUBJECT    TO    REMAINDERS. 

"  If  land  is  subject  to  a  contingent  remainder,  executory- 
devise,  or  power  of  appointment,  the  probate  court  for  the 
county  in  which  such  land  is  situated,  may,  upon  the 
petition  of  any  person  who  has  an  estate  in  possession  of 
such  land,  and  after  notice  and  other  proceedings  as  herein- 
after required,  appoint  one  or  more  trustees,  and  authorize 
him  or  them  to  sell  and  convey  such  land  or  any  part 
thereof  in  fee  simple,  if  such  sale  and  conveyance  appears 
to  the  court  to  be  necessary  or  expedient ;  or  to  mortgage 
the  same,  either  with  or  without  a  power  of  sale,  for  such  an 
amount,  on  such  terms,  and  for  such  purposes  as  may  seem 
to  the  court  judicious  or  expedient ;  and  such  conveyance 
or  mortgage  shall  be  valid  and  binding  upon  all  parties."  ^ 

"  If  land  is  subject  to  a  vested  remainder  or  reversion, 
the  probate  court  for  the  county  in  which  such  land  is  sit- 
uated may,  upon  the  petition  of  any  person  who  has  either 
an  estate  in  possession  or  the  remainder  or  reversion  in 
such  land,  and  after  notice  and  other  proceedings  as  here- 
inafter required,  appoint  one  or  more  trustees  and  author- 
ize him  or  them  to  sell  and  convey  such  land  or  any  part 
thereof,  in  fee  simple,  if  such  sale  and  conveyance  appear 
to  the  court  to  be  necessary  or  expedient,  and  such  con- 
veyance shall  be  valid  and  binding  upon  all  persons."  ^ 

"  Notice  of  a  petition,  under  the  provisions  of  tlie  two 
preceding  sections  (R.  L.  c.  127,  §§  28,  29),  shall  be  given, 
in  such  manner  as  the  court  may  order,  to  all  persons  who 
are  or  may  become  interested  in  the  real  estate  to  which 
the  petition  relates,  and  to  all  persons  whose  issue,  not  in 

1  R.  L.  c.  127,  §  28;  Whitcomb  v.  Taylor,  122  Mass.  243;  Bamforth 
V.  Bamforth,  123  Mass.  280. 
a  R.  L.  c.  127,  §  29. 


SALES  OF  LANDS  BY  EXECUTORS,  ETC.       277 

being,  may  become  interested  therein  ;  and  the  court  shall 
of  its  own  motion  in  every  case  appoint  a  suitable  person 
to  appear  and  act  therein  as  the  next  friend  of  all  minors, 
persons  not  ascertained,  and  persons  not  in  being,  who  are 
or  may  become  interested  in  such  real  estate ;  and  the 
provisions  of  section  twenty-three  and  twenty-four  of 
chapter  one  hundred  and  forty-five  (of  the  Rev.  Laws,  as 
to  appointment  and  compensation  of  guardian  ad  litem  or 
next  friend),  which  are  not  inconsistent  herewith,  shall 
apply  in  the  case  of  such  appointment."  ^ 

A  trustee  who  is  appointed  under  the  provisions  of  section 
twenty-eight  or  twenty-nine  shall  give  bond  in  such  form  and 
for  such  an  amount  as  the  court  appointing  him  may  order  ; 
and  be  shall  receive  and  hold,  invest  or  apply,  the  proceeds 
of  any  sale  or  mortgage  made  by  him,  for  the  benefit  of 
the  persons  who  would  have  been  entitled  to  the  real 
estate  if  such  sale  or  mortgage  had  not  been  made  ;  and 
the  probate  court  of  any  county  in  which  any  part  of  such 
land  is  situated  shall  have  jurisdiction  of  all  matters  there- 
after arising  in  relation  to  such  trust.^ 

A  mortgage  executed  by  an  executor,  administrator, 
guardian,  or  trustee,  must  set  forth  the  fact  that  the  same 
is  executed  by  license  of  the  court,  and  the  date  of  such 
license.  Every  such  mortgage  may  contain  a  power  of 
sale.^ 

SALE   OF   LOTS   IN   CEMETERIES. 

Executors,  administrators,  guardians,  and  trustees  may 
be  authorized  by  probate  courts,  after  notice  to  all  persons 
interested  or  upon  their  assent  thereto,  to  sell  and  convey 
or  release,  upon  such  terms  and  in  such  manner  as  said 

1  R.  L.c.  127,  §  30.  «  Ibid.  §  31.  «  R.  L.  c.  148,  §  6. 


278       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

courts   may   order,   lots   in    cemeteries  belonging  to  the 
persons  or  estates  by  them  represented.^ 

APPOINTMENT    OF   TRUSTEE   TO    CONVEY. 

When  a  person  seised  or  possessed  of  real  or  personal 
estate,  or  of  an  interest  therein,  upon  a  trust,  express  or 
implied,  is  under  the  age  of  twenty-one  years,  insane, 
out  of  the  commonwealth,  or  not  amenable  to  the  process 
of  any  court  therein  which  has  equity  powers,  and  when 
in  the  opinion  of  the  supreme  judicial  court,  the  superior 
court,  or  the  probate  court,  it  is  fit  that  a  sale  should  be 
made  of  such  estate  or  of  an  interest  therein,  or  that  a 
conveyance  or  transfer  should  be  made  thereof  in  order  to 
carry  into  effect  the  objects  of  the  trust,  the  court  may 
order  such  sale,  conveyance,  or  transfer  to  be  made,  and 
may  appoint  some  suitable  person  in  the  place  of  such 
trustee  to  sell,  convey,  or  transfer  the  same  in  such  man- 
ner as  it  may  require.  If  a  person,  so  seised  or  possessed 
of  an  estate,  or  entitled  thereto  upon  a  trust,  is  within  the 
jurisdiction  of  the  court,  he  or  his  guardian  may  be 
ordered  to  make  such  conveyances  as  the  court  orders.^ 

LEASES   BY   GUARDIAN    OF   WARD'S   REAL   PROPERTY. 

The  probate  court  may,  upon  the  petition  of  a  guardian, 
setting  forth  a  description  of  the  real  property  of  his  ward, 
the  reason  why  it  is  necessary  or  expedient  to  give  a  writ- 
ten lease  thereof  and  the  length  of  the  term,  if  after  notice 
and  a  hearing  it  appears  to  be  necessary  or  expedient, 
authorize  such  guardian  to  give  a  written  lease  of  the  real 
property  of  his  ward,  and  the  decree  of  the  court  shall  fix 
the  term  and  the  amount  for  which  it  may  be  leased.^ 

1  R.  L.  c.  148,  §  5.        2  R.  L.  c.  147,  §  17.        s  r.  l.  c.  146,  §  29. 


CHAPTER  XV. 

ACCOUNTS  OF  EXECUTORS,  ADMINISTRATORS,  GUARDIANS, 
AND   TRUSTEES. 

Every  executor,  administrator,  guardian,  and  every 
trustee  who  is  required  to  give  bond  to  the  judge  of  a 
probate  court,  is  required  by  law  and  by  the  condition  of 
his  bond  to  render  an  account  relative  to  the  estate  in  his 
hands  at  least  once  a  year,  and  at  such  other  times  as  shall 
be  required  by  the  court,  until  his  trust  is  fulfilled  ;  but  the 
court  may,  upon  his  application,  excuse  him  from  rendering 
an  account  in  any  year,  if  satisfied  that  it  is  not  necessary 
or  expedient  that  such  account  should  be  rendered.^ 

No  final  settlement  of  the  account  of  any  executor, 
administrator,  or  trustee  shall  be  allowed  unless  such 
account  shows,  and  the  judge  of  the  probate  court  finds, 
that  all  taxes  on  collateral  legacies  and  successions  imposed 
by  the  provisions  of  chapter  15  of  the  Revised  Laws  upon 
any  property  or  interest  therein  belonging  to  the  estate  to 
be  settled  by  said  account  have  been  paid.  The  treasurer 
of  the  commonwealth  shall,  within  six  months  after  the 

1  R.  L.  c.  149,  §  1.  If  an  executor  neglects  to  file  an  account  within 
one  year  after  his  appointment,  it  is  a  breach  of  his  bond,  although  a 
debt  due  from  the  testator  to  the  executor  and  the  burial  expenses  paid 
by  him  exceed  in  amount  the  assets,  and  no  other  claims  are  presented 
by  creditors  within  two  years.     Forbes  v.  McHugh,  152  Mass.  412. 

The  fact  that  the  administrator  is  the  executor  and  sole  legatee  of 
the  estate  under  a  will  afterwards  discovered,  does  not  relieve  him  of 
the  duty  of  making  a  proper  settlement  of  his  account  as  administra- 
tor.    Bennett  v.  Woodman,  116  Mass.  518. 

An  administrator  has  the  right  to  file  and  settle  the  account  of  his 
intestate  as  administrator  c?e  bonis  non  of  an  estate  in  the  probate  court 
before  he  can  be  called  upon  to  deliver  all  of  the  assets  in  his  hands 
belonging  to  the  estate.     Foster  v.  Bailey,  157  Mass.  160. 


280       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

tax  shall  be  due,  sue  in  his  own  name  for  the  recovery  of 
all  taxes  unpaid,  and  shall  also  bring  suit  when  the  judge 
of  probate  shall  certify  to  him  that  a  final  account  of  any 
executor,  administrator,  or  trustee  has  been  filed  in  such 
probate  court,  and  that  the  final  settlement  of  such  estate 
is  delayed  because  of  the  non-payment  of  such  tax,  and 
such  certificate  shall  issue  upon  the  application  of  any 
heir,  legatee,  or  any  person  interested  ;  provided,  however, 
that  the  probate  court  may  extend  the  time  of  payment  of 
said  tax  whenever  the  circumstances  require.^ 

Special  administrators  are  held  to  account  whenever 
required  by  the  probate   court.^ 

"When  property  is  held  in  trust  under  a  written  instru- 
ment or  statute,  and  there  is  no  adequate  provision  for  an 
account  of  the  management  of  the  trust  estate,  the  probate 
court  in  a  county  where  land  so  held  is  situate,  or  where 
a  person  interested  in  the  trust  resides,  may,  on  applica- 
tion of  any  person  interested,  require  the  trustee  to  render 
an  account  on  oath  ;  and  the  court  first  so  applied  to  will 
thereafter  have  exclusive  original  jurisdiction  therein. 

An  executor,  administrator,  guardian,  or  trustee  whose 
appointment  is  invalid  by  reason  of  any  irregularity  or  want 
of  jurisdiction  in  the  court  appointing  him,  is  held  to  account 
for  all  property  that  has  come  to  his  hands,  and  the  bond 
given  by  him  in  pursuance  of  such  appointment  is  valid  and 
binding  on  him  and  his  sureties.  Payments  made  by  or  to 
liim  may,  with  the  approval  of  the  probate  court,  be  ratified 
and  confirmed  by  the  executor,  administrator,  guardian,  or 
trustee  wiio  may  afterwards  be  legally  appointed.^ 

It  is  the  practice,  to  some  extent,  of  executors  and  other 
trust  officers  appointed  by  the  probate  court  to  settle  their 
accounts  with  the  parties  interested  without  rendering  a 
final  account  to  the  court,  and  in  a  majority  of  cases  no 

1  R.  L.  c.  15,  §§  19,  20.         2  R.  L,  c.  149,  §  1,  cl.  3.         »  Ibid.  §  25. 


ACCOUNTS   OF   EXECUTORS,   ADMINISTRATORS,   ETC.      281 

inconvenience  results  from  that  mode  of  proceeding.  Such 
a  settlement,  however,  between  the  administrator  and  the 
heirs,  or  between  the  guardian  and  his  ward,  is  not  a  com- 
pliance with  the  condition  of  his  bond  ;  and  he  may  be 
cited,  on  the  petition  of  persons  interested,  to  render  his 
account  in  the  probate  court,  notwithstanding  such  settle- 
ment. He  may  be  held  to  account,  although  he  produces 
the  receipts  of  all  the  heirs  acknowledging  the  payment  of 
their  distributive  shares  in  full.^  Such  receipts  are  evidence 
for  the  consideration  of  the  probate  court  in  determining 
whether  a  further  settlement  shall  be  ordered  or  not ;  but 
they  do  not  estop  the  heirs  or  the  ward  from  calling  on  the 
administrator  or  the  guardian  to  settle  his  accounts  in  court. 
When  one  of  two  or  more  joint  executors  or  administra- 
tors dies,  or  is  removed  before  the  administration  is  com- 
pleted, the  account  is  rendered  by  the  other  or  otliers.^ 
When  a  sole  executor  or  other  trust  officer  dies,  not  having 
settled  his  account,  it  should  be  rendered  by  his  executor 
or  administrator  ;  2  and  it  has  been  held  that  it  may  be 
settled  by  the  administrator  of  one  of  his  sureties.* 

1  Bard  v.  Wood,  3  Met.  74;  Clark  r.  Clay,  11  Foster  (N.  H.),  393; 
Wing  V.  Wheeler,  69  Maine,  282.  Notwithstanding  the  settlement  and 
receipt,  the  guardian  is  bound  to  answer  on  oath  proper  interrogatories 
respecting  his  account  and  the  items  thereof,  and  the  ward  may  in- 
troduce evidence  touching  the  execution  and  validity  of  the  receipt. 
Wade  V.  Lobdell,  4  Gush.  511 ;  Blake  v.  Pegram,  101  Mass.  592.  A 
guardian  who  has  furnished  necessaries  to  his  ward,  even  if  he  had 
no  property  of  the  ward  in  his  hands,  cannot  maintain  an  action  at 
law  against  the  ward  until  the  guardianship  has  been  discharged,  and 
the  amount  due  him  ascertained  by  a  settlement  of  his  accounts  in  the 
probate  court.  Smith  v.  Philbrick,  2  N.  H.  395;  JNIcLane  v.  Gun  an, 
133  Mass.  531 ;  Thorndike  v.  Hinckley,  155  Mass.  265,  and  cases  cited. 

2  R.  L.  c.  139,  §  11. 

*  The  guardian's  administrator  may  be  cited  for  that  purpose  on 
petition  of  the  ward.     Gregg  i;.  Gregg,  15  N.  H.  190. 

*  Curtis  V.  Bailey,  1  Pick.  198. 


282  PROCEEDINGS   IN   THE   PROBATE   COURTS. 

PUBLIC   ADMINISTRATORS. 

Every  public  administrator  shall  upon  the  appointment 
and  qualification  of  an  executor  or  administrator  as  his 
successor,  surrender  into  the  probate  court  his  letters  of 
administration  in  such  case,  with  an  account  under  oath 
of  his  doings  therein  ;  and  upon  a  just  settlement  of  such 
account,  shall  pay  over  and  deliver  to  his  successor  all 
sums  of  money  remaining  in  his  hands,  and  all  property, 
effects,  and  credits  of  the  deceased  not  then  administered.^ 

Every  public  administrator  who  gives  a  general  bond 
sliall,  at  the  probate  court  first  held  in  his  county  after 
the  first  day  of  January  in  each  year,  render  an  account 
under  oath  of  all  balances  of  estates  then  remaining  in 
his  hands  ;  and  the  court  may  at  any  time  require  addi- 
tional sureties  to  be  furnished  upon  such  administrator's 
bond,  or  may  require  a  new  bond  to  be  given  .^ 

When  an  estate  has  been  fully  administered  by  a  public 
administrator,  he  shall  deposit  the  balance  of  such  estate 
remaining  in  his  hands  with  the  treasurer  of  the  com- 
monwealth, who  shall  receive  and  hold  it  for  the  benefit 
of  those  who  may  have  lawful  claims  thereon.^ 

The  probate  courts  shall  require  every  public  adminis- 
trator in  their  respective  counties  to  render  an  account 
of  his  proceedings  under  any  letters  of  administration  at 
least  once  in  each  year  until  the  trust  has  been  fulfilled. 
And  when,  upon  a  final  settlement  of  an  estate,  it  appears 
that  moneys  remain  in  the  hands  of  such  administrator 
which  bylaw  should  have  been  deposited  with  the  treasurer 
of  the  commonwealth,  the  court  shall  certify  that  fact  and 
a  statement  of  the  amount  so  withheld  to  said  treasurer, 
who,  unless  such  deposit  is  made  within  one  month  after  the 

1  R.  L.  c.  138,  §  5.  2  Ibid.  §  8.  8  Ibid.  §  12. 


ACCOUNTS    OF    EXECUTORS,    ADMINISTRATORS,    ETC.       283 

receipt  of  such  notice,  shall  cause  the  bond  of  the  adminis- 
trator to  be  prosecuted  for  the  recovery  of  sucli  moneys.^ 

Wlien  a  public  administrator  neglects  to  return  an  in- 
ventory, to  settle  an  account,  or  to  perform  any  other  duty 
incumbent  on  him  in  relation  to  an  estate,  and  there  appears 
to  be  no  heir  entitled  to  such  estate,  the  district  attorney 
for  the  disti-ict  within  which  the  administrator  received  his 
letters  shall,  in  behalf  of  the  commonwealth,  prosecute  all 
suits  and  do  all  acts  necessary  and  proper  to  insure  a  prompt 
and  faithful  administration  of  the  estate  and  the  payment  of 
the  proceeds  thereof  into  the  treasury  of  the  commonwealth  ; 
and  if  no  heir  has,  witliin  two  years  after  the  granting  of 
letters  of  administration,  appeared  and  made  claim  in  the 
probate  court  for  his  interest  in  such  estate,  it  shall  be  pre- 
sumed that  there  is  no  such  heir,  and  the  burden  of  proving 
his  existence  shall  be  upon  the  public  administrator.^ 

If  the  total  property  of  an  intestate  wliich  has  come  into 
the  possession  or  control  of  a  public  administrator  is  of  a 
value  less  than  twenty  dollars,  unless  the  same  is  the  balance 
of  an  estate  received  from  a  prior  public  administrator,  he 
shall  forthwith  reduce  all  such  property  into  money,  not 
taking  administration  thereon,  and  shall  deposit  such  money, 
first  deducting  his  reasonable  expenses  and  charges,  with 
the  treasurer  of  the  commonwealth,  who  shall  receive  and 
hold  it  for  the  benefit  of  any  persons  who  may  have  legal 
claims  thereon.  Such  claims  may  be  presented  to  the  audi- 
tor of  the  commonwealth  within  one  year  from  such  payment 
to  the  treasurer,  and  the  auditor  shall  examine  such  claims 
and  allow  such  as  may  be  proved  to  his  satisfaction,  and  upon 
the  expiration  of  the  year  shall  forthwith  certify  the  same 
to  the  governor  and  council  for  payment  of  the  whole  of  the 
claims  or  such  proportion  thereof  as  the  funds  will  allow.^ 

Every  public  administrator,  upon  making  such  deposit, 
1  R.  L.  c.  138,  §  13.       2  Ibid.  §  17.  s  Ibid.  §  18. 


2S4       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

shall  file  with  the  treasurer  a  true  and  particular  account, 
under  oath,  of  all  his  dealings,  receipts,  payments,  and 
charges  on  account  of  the  property  from  which  the  money 
so  deposited  proceeds,  including  the  name  of  the  intestate, 
if  known  to  him,  and  the  treasurer  shall  thereupon  deliver 
to  him  a  receipt  for  such  money.  And  such  deposit  shall 
exempt  the  public  administrator  making  it  from  all  responsi- 
bility for  or  on  account  of  the  money  so  deposited.^ 

CITATION   TO    RENDER   ACCOUNT. 

If  the  executor  or  other  officer  neglects  or  unreasonably 
delays  the  settlement  of  his  account  in  the  probate  court, 
he  may  be  cited  for  that  purpose  on  the  petition  of  any 
person  interested  in  the  estate  concerning  which  the 
account  is  to  be  rendered.  The  petition  should  set  forth 
the  particulars  in  which  the  executor  has  been  negligent, 
in  accordance  with  the  facts  of  the  case.  Upon  such 
petition,  tlie  court  will  issue  a  citation  to  the  delinquent 
party,  which  must  be  served  in  the  manner  directed  by 
its  terms.  If,  after  being  cited,  he  neglects  to  appear  or 
to  render  his  account,  leave  will  be  granted  to  bring  a 
suit  on  his  bond  ;  and  he  will  be  liable  in  like  manner  and 
to  the  same  extent  as  an  executor  in  his  own  wrong.^ 

If  an  executor  or  administrator  neglects  to  render  and 
settle  his  accounts  in  the  probate  court  within  six  montlis 
after  the  final  determination  of  the  claims  of  creditors, 
or  within  such  further  time  as  the  court  may  allow,  and 
thereby  delays  a  decree  of  distribution,  such  neglect  shall 
be  deemed  unfaithful  administration ;  and  he  may  be 
forthwith  removed,  and  shall  be  liable  in  a  suit  on  his 
bond  for  all  damages  occasioned  by  his  default.^ 

1  R.  L.  c.  139,  §  19.  2  R.  L.  c.  150,  §  16. 

8  R.  L.  c.  142,  §  26.  Auditors  may  be  appointed  by  the  judge  of 
probate  to  examine  accounts  filed  in  the  probate  court.  R.  L.  c.  165, 
§§  56,  60. 


ACCOUNTS   OF   EXECUTORS,  ADMINISTEATOilS,  ETC.        285 
FORM    OP    ADMINISTRATION    ACCOUNT. 

lu  his  account,  the  executor  or  administrator  charges 
himself  with  the  amount  of  assets  that  have  come  to  his 
hands,  and  asks  to  be  allowed  for  the  amount  of  all  debts 
paid  by  him,  and  the  expenses  of  the  administration. 
With  the  account,  stated  in  this  form,  must  be  filed  a 
schedule  stating  the  names  of  all  persons  of  whom  he 
has  received  money,  the  sum  received  from  each,  and  the 
time  when  each  sum  was  received;  and  a  second  schedule, 
giving  the  several  sums  paid  by  him,  the  persons  to  whom, 
and  the  purpose  for  which  each  sum  was  paid.  If  the 
estate  has  been  represented  insolvent,  the  executor  or 
administrator  does  not  ask  in  his  first  account  to  be 
allowed  any  sura  for  the  payment  of  debts  owed  by  the 
deceased,  he  having  no  authority  to  pay  the  debts  except 
under  a  decree  of  distribution  issued  by  the  court.  He 
credits  himself  with  the  charges  of  administration,  the 
amount  of  loss,  if  any,  necessarily  sustained  by  the  estate 
in  his  hands,  and  with  the  amount  of  the  allowance,  if 
any,  made  by  the  court  to  the  widow  or  minor  children  of 
the  deceased.  The  balance,  thus  exhibited,  remains  in 
his  hands  until  he  is  ordered  by  the  court  to  distribute  it 
among  the  creditors.  ^ 

If  the  deceased  insolvent  had  been  a  member  of  a 
co-partnership  and  died  in  possession  of  both  partnership 
estate  and  separate  estate,  and  both  partnership  and  sepa- 
rate claims  are  proved    against  his  estate,  the  adminis- 

^  If  an  administrator  who  has  received  money  belonging  to  the 
estate  in  another  state  under  ancillary  letters  of  administration 
accounts  for  it  here,  and  a  decree  is  rendered  here  that  the  amount  so 
received  is  due  the  estate  from  the  administrator,  the  decree  will  stand, 
unless  appealed  from.     Brooks  v.  Tobiu,  135  Mass.  69. 


286       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

trator  should  so  state  his  account  as  to  exhibit  the  amount 
of  the  partnership  estate  in  his  hands  distinct  from  the 
separate  estate.  The  expenses  of  administration  in  such 
case  are  to  be  deducted  from  the  whole  amount  received 
by  the  executor,  and  the  net  proceeds  of  the  joint  stock 
are  appropriated  to  pay  the  creditors  of  the  firm,  and  the 
net  proceeds  of  the  separate  estate  to  pay  the  separate 
creditors ;  the  surplus,  if  any,  of  one  fund  being  applied 
towards  the  liquidation  of  debts  payable  out  of  the  other. 

WITH    WHAT   THE   EXECUTOR   OR   ADMINISTRATOR   IS 
CHARGEABLE, 

Every  executor,  administrator,  guardian,  and  trustee 
shall  be  chargeable  in  his  account  with  all  the  personal 
estate  of  the  deceased  which  comes  to  his  hands,  and 
which  is  by  law  to  be  administered,  although  not  included 
in  the  inventory ;  also  with  all  proceeds  of  real  estate 
sold  or  mortgaged,  and  with  all  interest,  profit,  and 
income  that  come  to  his  hands  from  the  personal  estate 
of  the  deceased.^ 

The  first  item  with  which  the  executor  or  administrator 
charges  himself  in  the  schedule  annexed  to  his  first 
account  is  the  value  of  the  personal  estate  as  shown  by 
the  inventory.  He  should  charge  himself  with  the  full 
amount  of  the  appraisal  of  the  personal  property,  whether 
he  has  disposed  of  it  for  more  or  less  than  that  amount. 

If  he  has  sold  the  personal  estate  for  more  than  its 
appraised  value,  he  next  charges  himself  with  the  amount 
of  the  gain. 

After  thus  accounting  for  the  personal  property  inven- 
toried, and  for  the  gain,  if  any,  on  its  sale,  he  charges 

1  R.  L.  c.  150,  §  5. 


ACCOUNTS   OF   EXECUTOliS,  ADMINISTRATORS,  ETC.        287 

himself  with  all  proceeds  of  real  estate  sold  by  him,  for 
the  payment  of  debts  and  legacies,  with  the  proceeds  of 
any  personal  estate  not  included  in  the  inventory,  and 
with  all  interest,  profit,  and  income  that  may  have  come 
to  his  hands  from  the  personal  estate  of  the  deceased.  ^ 

1  Manure  taken  from  the  barnyard  of  a  homestead  and  piled  on 
the  land,  though  not  broken  up  nor  rotten,  nor  in  a  fit  state  for  incor- 
poration with  the  soil,  is  part  of  the  realty,  and  is  not  chargeable  to 
the  administrator  as  personal  estate.  Fay  v.  Muzzey,  13  Gray,  53. 
But  he  is  chargeable  with  the  value  of  manure  when  it  is  personal 
property,  although  he  has  spread  it  in  the  usual  course  of  good  hus- 
bandry on  the  land  of  the  deceased,  and  has  sold  the  land  for  payment 
of  debts.     Ibid. 

When  the  administrator  of  an  insolvent  estate  sold  real  estate, 
under  license  of  probate  court,  and  the  land  sold  was  mortgaged,  and 
the  mortgage  recorded,  but  was  unknown  to  him  or  the  purchaser  at 
the  time  of  the  sale,  it  was  held  that  he  might  apply  the  proceeds 
of  the  sale  to  the  payment  in  full  of  the  mortgage  debt,  and  that  he  was 
chargeable  in  his  account  only  for  the  balance  of  such  proceeds. 
Church  V.  Savage,  7  Cush.  440. 

Money  received  by  an  administrator  from  the  government  of  the 
United  States,  by  means  of  a  treaty  with  a  foreign  nation,  as  an  in- 
demnity for  property  taken  from  tlie  intestate  by  such  foreign  nation, 
is  assets  in  the  administrator's  hands.     Foster  v.  Fifield,  20  Pick.  67. 

When  personal  property  attached  by  trustee  process  was  assigned 
by  the  owner  subject  to  the  attachment,  and  the  attachment  was  dis- 
solved by  the  owner's  death,  it  was  held  that  the  property  passed  by 
the  assignment,  and  was  not  assets  in  the  administrator's  hands. 
Coverdale  v.  Aldrich,  19  Pick.  391. 

Where  an  executor  sold  lands  of  the  testator,  and  became  himself  a 
purchaser  with  two  others,  under  an  agreement  to  shaie  equally  in 
the  profits  of  resale,  he  was  held  to  account  for  one-third  part  of  such 
profits.     Jennison  v.  Hapgood,  10  Pick.  93. 

If,  to  prevent  a  sale  of  the  real  estate,  the  heirs  furnish  the  execu- 
tor or  administrator  with  money  sufficient  for  the  payment  of  all 
claims  against  the  estate  and  the  expense  of  administration,  and 
thereby  render  any  sale  of  the  real  estate  unnecessary,  the  money  so 
furnished  by  them  is  assets  of  the  estate,  to  be  accounted  for  by  the 
administrator.     Fay  v.  Taylor,  2  Gray,  159. 

Money  found,  after  the  death  of  a  testatrix,  in  a  secret  drawer  of  a 
chest  belonging  to  her,  does  not  pass  by  a  specific  bequest  of  the  chesti 


288       TKOCEEDINGS  IN  THE  PUOBATE  COURTS. 

The  executor  or  administrator  is  bound  to  exercise  the 
same  care  and  diligence  in  the  management  of  the  estate 
which  men  of  intelligence  and  prudence  employ  in  the 
conduct  of  their  own  affairs.  He  is  not  a  guarantor,  but 
he  is  held  to  account  for  a  loss  occasioned  by  his  negli- 
gence. He  may  be  liable  for  negligence  even  when  he 
acts  in  good  faith  ;^  and  he  is  chargeable  with  the  value 
of  property  lost  through  his  neglect,  though  it  never  came 
into  his  actual  possession. ^     If  property  belonging  to  the 

but  is  a  portion  of  the  residuum  of  the  personal  estate,  for  which  the 
executor  is  bound  to  account.     Smith  v.  Jewett,  3  Chandler  (N.  H.), 

5i;3. 

If  an  executor  receive  money  for  a  deed  of  real  estate  made  by  the 
testator,  but  not  delivered  until  after  his  death,  he  is  bound  to  account 
for  it.     Loring  v.  Cunningham,  9  Cush.  87. 

Salary  voted  to  a  person  after  his  decease,  and  paid  to  his  executor, 
is  assets  of  the  estate,  to  be  accounted  for  by  the  executor.     Ibid. 

The  amount  of  land  damages  paid  for  land  taken  for  a  railroad, 
after  the  death  of  the  intestate  belongs  to  the  heirs,  and  not  to  the 
administrator,  although  the  estate  is  insolvent,  and  the  whole  estate 
is  afterwards  sold  by  the  administrator,  under  license,  for  the  pay- 
ment of  debts.  Boynton  v.  P.  &  S.  Railroad,  4  Cush.  467.  Otherwise, 
if  actually  taken  before  the  intestate's  death.  Moore  v.  Boston,  8 
Cush.  274;  Chapin  v.   Waters,  116  Mass.  147. 

If  the  testator  had  money  or  other  property  in  his  hands  belonging 
to  others,  whether  in  trust  or  otherwise,  and  it  has  no  ear-mark,  and 
is  not  distinguishable  from  the  mass  of  his  property,  the  party  owning 
it  must  come  in  as  a  general  creditor  of  the  estate,  and  the  property  is 
assets,  to  be  accounted  for  by  the  executor.  Trecothick  v.  Austin,  4 
Mason.  29  \  Johnson  v.  Ames,  11  Pick.  181;  Little  r.  Chadwick,  151 
Mass.  Ill,  and  cases  cited 

1  It  is  negligence  for  an  executor  to  deliver  a  S1,000  United  States 
bond  worth  .^1,"J0()  in  the  market  at  the  time  in  payment  of  a  legacy 
of  SI, 000.  tliough  the  bond  was  appraised  in  the  inventory  at  its  face 
value.  He  must  account  for  the  premium  and  interest  on  it.  Spauld- 
ing  V.  Wakefield,  53  Vt.    6G0. 

2  Two  turkeys  belonging  to  the  intestate  wandered  away,  after  his 
death,  to  a  neighbor's  hou.se,  and  there  remained  several  months,  when 
they  were  disposed  of  by  the  neighbor.  They  had  never  been  in  the 
administrator's  possession,  nor  had  he  ever  called  for  them.     He  was 


ACCOUNTS   OF   EXECUTOKS,  ADMINISTRATOllS,  ETC.         289 

estate  is  stolen  without  his  default  or  neglience,  he  is  not 
chargeable.  ^     He  would  not  be  liable  for  the  loss  of  money 

ordered  to  charge  himself  with  their  value.     Tuttle  v.  Robinson,  33 
N,  H.  104. 

^  Executors  placed  United  States  coupon  bonds  in  the  vault  of  a 
bank  for  safe  keeping,  and  the  bank  was  robbed  by  burglars.  They 
procured  new  bonds  in  place  of  those  stolen  by  giving  the  government 
a  bond  of  indemnity,  and  their  agent,  who  was  an  employee  in  the 
treasury  department,  and  was  considered  trustworthy,  appropriated 
the  bonds.  Held,  that  the  executors  were  not  liable  for  the  loss  caused 
by  the  burglary,  nor  for  the  dishonesty  of  their  agent.  Carpenter  v 
Carpenter,  12  R.  I.  544.     See  Stevens  v.  Gage,  55  N.  H.  175. 

An  executor  left  securities  in  the  custody  of  the  testator's  nephew 
to  whom  the  testator  had  given  them  for  safe  keeping,  and  intrusted 
him  with  property  of  his  own.  The  nephew  appropriated  the  bonds. 
Held,  that  the  executor  was  not  liable  for  the  loss.  McCabe  v.  Fowler, 
84  N.  Y.  314. 

An  executor  who,  before  the  death  of  his  intestate,  contracted  with 
him  for  the  purchase  of  real  estate,  entered  into  possession,  and  made 
payments  on  account  of  principal  and  interest  of  the  purchase-money, 
has  included  in  his  inventory  the  amount  of  the  agreed  price  and 
interest  remaining  unpaid,  and  to  whom  the  heirs  are  ready  to  convey 
on  payment  thereof,  is  bound  to  charge  himself  with  such  amount  in 
his  administration  account.     Chenery  v.  Davis,  16  Gray,  89. 

If  a  surety  on  the  bond  of  the  administrator  who  is  removed  for 
failure  to  account  is  himself  appointed  administrator  de  bonis  non  of 
the  estate,  his  liability  as  surety  is  a  debt  due  the  estate  with  which 
he  should  charge  himself,  although  the  amount  has  not  been  ascer- 
tained.    Choate  v.  Thorndike,   138  Mass.  371. 

If  the  executor  of  the  will  of  a  member  of  a  beneficiary  association 
receives  from  the  association  the  amount  due  on  a  benefit  certificate 
issued  to  the  member,  he  takes  it  not  as  executor,  but  in  trust  to  pay 
it  over  to  the  person  entitled  thereto.  American  Legion  of  Honor  v. 
Perry,  140  Mass.  580;  Daniels  v.  Pratt,  143  Mass.  216, 

The  settlement  in  the  probate  court  of  an  administrator's  account, 
showing  that  he  has  exhausted  all  the  estate  in  paying  the  expenses 
of  the  late  sickness,  funeral,  and  administration,  is  a  good  defence  to 
an  action  brought  against  the  administrator  on  his  bond,  although  he 
has  suffered  a  judgment  to  be  recovered  against  him  before  such  settle- 
ment of  his  account.     Fuller  v.  Connelly,  142  Mass.  227. 

If  the  assets  of  a  partnership  are  in  the  possession  of  one  of  the 

19 


290       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

deposited  in  his  name  as  executor  in  a  bank  in  good 
standing,  but  would  be  liable  if  the  money  was  mingled 
with  his  own  funds,  and  credited  to  him  in  his  personal 
account.  He  may  be  charged  with  the  amount  of  a  debt 
due  the  estate  if  it  remains  uncollected  through  his  neg- 
lect. ^  If,  in  his  capacity  as  executor,  he  has  received 
money  not  belonging  to  the  estate,  he  must  charge  himself 
with  it,  unless  he  can  show  a  liability  to  pay  it  over  to 
one  legally  claiming  it.^ 

If  the  executor  or  administrator  continues  the  business 
in  which  the  deceased  was  engaged  at  the  time  of  his 
death,  either  at  the  request  of  the  parties  interested  in  the 
estate  or  under  the  directions  of  the  will  of  his  testator 
or  the  provisions  of  a  copartnership  agreement  of  the 
deceased,  he  must  account  for  all  profits  of  the  business, 
and  is  not  liable  for  losses.^ 

When  an  executor  is  by  the  express  terms  of  the  will 
of  his  testator,  or  by  necessary  implication,  made  a  trustee 
of  any  part  of  the  estate,  he  will  be  required  to  account 
for  the  trust  fund  in  his  capacity  of  executor,  unless  for 
greater  convenience  and  with  the  assent  of  the  probate 
court  he  opens  a  new  account  as  trustee ;  in  which  event 
he  must  give  a  new  bond  as  trustee,  and  transfer  to  his 

partners  at  the  time  of  his  death,  and  are  sold  by  his  executor  for  less 
than  their  value,  and  the  amount  received  is  accounted  for  as  assets  of 
his  estate,  the  surviving  partners,  on  a  bill  in  equity  against  the  execu- 
tor in  his  capacity  as  executor,  are  entitled  to  recover  from  the  estate 
only  their  proportion  of  the  amount  actually  received  and  interest, 
•whatever  rights  they  may  have  against  the  executor  personally.  Brad- 
ley r.  Brigham,  144  Mass.  181. 

1  Schultz  V.  Pulver,  11  Wend.  361;  Caffrey  v.  Darby,  6  Ves.  488; 
Robinson  v.  Ring,  72  Me.  140. 

2  Jennison  v.  Hapgood,  10  Pick.  104. 

3  Poole  V.  Munday,  103  Mass.  174;  Palmer  v.  Mitchell,  2  My.  &  K. 
672;  Willett  v.  Blandford,  1  Hare,  253. 


ACCOUNTS    OF   EXECUTORS,  ADMINISTKATOKS,  ETC.  291 

account  as  trustee  the  property  to  be  held  and  adminis- 
tered by  him  in  that  character,  before  his  liability  as 
executor  will  terminate.^  If  he  continues  to  hold  the 
trust  fund  as  executor,  it  is  his  duty  to  separate  it  from 
the  mass  of  the  testator's  property  and  invest  it  in  some 
secure  and  productive  stock,  or  at  interest  on  good  security. 
And  if  in  this  respect  he  acts  with  strict  fidelity  and  due 
diligence,  he  will  not  be  responsible  should  any  loss 
happen,  either  of  principal  or  interest. ^  But  the  mere 
mental  determination  of  an  executor  to  appropriate  prop- 
erty to  himself  as  trustee  is  not  such  a  setting  apart  as 
will  cause  a  loss  or  depreciation  of  the  trust  fund  to  fall 
on  the  cestui  que  trust ;  the  executor,  in  such  case,  must 
account  for  the  entire  trust  fund,  and  the  amount  due  from 
him  must  be  stated  by  making  annual  rests,  adding  the 
interest  each  year  to  the  principal.^ 

If  an  administrator  appointed  in  this  commonwealth 
collects  funds  in  another  state  of  debtors  residing  there, 
he  must  account  for  them  here,  unless  he  has  taken  out 
letters  of  ancillary  administration  in  such  other  state ;  in 
that  case,  he  will  be  held  to  account  here  only  for  the 
surplus  remaining  in  his  hands  upon  the  settlement  of  the 
ancillary  administration.*  But  money  collected  there  of 
debtors  residing  here  must  be  accounted  for  here.'^ 

An  ancillary  administrator  appointed  in  this  common- 
wealth must  account  to  the  court  by  which  he  was  so 
appointed  for  all  assets  received  by  him  under  his  ancil- 
lary appointment,  but  not  for  assets  received  by  him  as 

1  Prior  V.  Talbot,  10  Cush.  1 ;  Ricketson  v.  Merrill,  148  Mass.  76. 

2  Dorr  V.  Wainwright,  13  Pick.  332;  Brown  v.  Kelsey,  2  Cush.  248; 
Hubbard  v.  Lloyd,  6  Cush.  522. 

3  Miller  v.  Congdon,  14  Gray,  114;  Collins  v.  Collins,  140  Mass. 
507. 

^  Hooker  v.  Olrastead,  6  Pick.  481 ;  Jennison  v.  Hapgood,  10  Pick.  77. 
6  Ibid. 


292       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

principal    administrator   in   the   place    of    the    principal 
administration.  ^ 

Whe7i  chargeable  with  Interest.  —  An  executor  or  admin- 
istrator is  not  chargeable  with  interest  on  the  money 
received  by  him  in  his  official  capacity  unless  he  has  made 
some  profitable  use  of  the  money,  or  has  been  guilty  of 
negligence  in  accounting  for  it.^  An  administrator  is 
not  expected  to  invest  any  part  of  the  money  belonging  to 
the  estate ;  nor  is  an  executor,  unless  he  is  required  to  do 
so  by  the  will  of  his  testator.  On  the  contrary,  it  is  his 
duty  to  collect  the  assets  and  pay  them  over  to  the  persons 
entitled  to  receive  them  as  speedily  as  circumstances 
will  allow.  But  if  he  has  invested  the  money  and  received 
interest  upon  it,  he  must  account  for  it ;  and  the  fact  that 
he  has  received  interest,  or  has  made  use  of  the  money  in 
his  own  business,  may  be  inferred  from  a  long  delay  in 
settling  his  accounts,  or  his  neglect  to  pay  over  balances 
after  demand  made  upon  him.^  But  if  the  delay  was 
without  negligence  on  his  part,  he  will  not  be  chargeable 
with  interest  unless  he  has  made  profit  of  the  funds.'*  He 
is  not  to  be  charged  with  interest  in  any  case  from  the 
date  of  his  appointment,  or  of  his  receipt  of  the  money. 
He  is  to  be  allowed  a  reasonable  time  to  settle  the  estate, 
and  the  time  proper  to  be  allowed  for  that  purpose  must 
depend  upon  the  circumstances  of  each  case.  No  general 
rule  would  do  justice  in  all  cases. ^     When  the  adminis- 

J  Fay  V.  Haven,  3  Met.  109. 

2  Wyman  v.  Hubbard,  13  Mass.  232;  Stearns  v.  Brown,  1  Pick. 
530;  Boynton  v.  Dyer,  18  Pick.  1;  Dunlap  v.  Watson,  124  Mass.  305; 
White  V.  Ditson,  140  Mass.  351. 

3  Wyman  v.  Hubbard,  13  Mass.  232 ;  Forward  v.  Forward,  6  Allen, 
494. 

*  Lamb  v.  Lamb,  11  Pick.  374. 

6  See  Clarkson  v.  De  Peyster,  2  Wend.  77;  Schiffelin  v.  Stewart, 
1  Johns.  Ch.  620 ;  Jennison  v.  Hapgood,  10  Pick.  77. 


ACCOUNTS    OF    EXECUTORS,  ALMI^'ISTKATOKS,  ETC.         293 

trator  employs  the  funds  of  the  estate  in  trade,  he  is 
liable  to  be  charged  with  compound  interest,  ^  and  may  be 
charged  with  the  whole  profits  on  the  fund  so  employed.^ 

Income  of  the  Real  Estate.  —  The  administrator  has  no 
official  authority  to  collect  the  rents  of  real  estate  belong- 
ing to  the  estate  of  his  intestate ;  nor  has  the  executor, 
unless  authorized  by  the  will  of  his  testator.  The  real 
estate  vests  in  the  heirs  or  devisees  immediately  upon  the 
death  of  the  owner,  and  all  rents  that  become  due  subsequent 
to  his  death  belong  to  them.  Even  if  the  estate  is  insol- 
vent, they  are  entitled  to  the  rents  and  profits  until  the 
land  is  sold,  by  license  of  court,  for  the  payment  of  debts.  ^ 
But  rents  collected  by  the  executor  or  administrator  to 
be  applied,  by  agreement  with  the  parties  interested,  to 
the  payment  of  claims  against  the  estate,  thereby  render- 
ing unnecessary  a  sale  of  the  land,  are  personal  assets,  to 
be  charged  against  the  administrator  in  his  account* 

If  the  real  estate  has  been  occupied  by  the  executor  or 
administrator,  he  may  be  required  to  account  in  the 
probate  court  to  the  heirs  or  devisees  for  the  income 
thereof ;  and  if  the  parties  do  not  agree  on  the  sum  to  be 
allowed,  it  will  be  determined  by  three  disinterested  per- 

^  Boynton  v.  Dyer,  18  Pick.  1  ;  Robbiiis  v.  Hayward,  1  Pick.  52, 
note ;  Schiffelin  v.  Stewart,  1  Johns.  Ch   620. 

2  Utica  Ins  Co.  v.  Lynch,  11  Paige,  520.  If  an  executor  mingles 
the  assets  of  the  estate  with  his  own  money,  and  afterwards  fails,  the 
parties  entitled  to  the  estate  can  come  in  and  prove  against  tlie  execu- 
tor's estate  only  on  an  equality  witli  bis  creditors.  Little  v.  Chadwick, 
151  Mass.  109. 

8  Gibson  v.  Farley,  16  IMass.  280;  Boynton  v.  P.  &  S.  Railroad, 
4  Cu.sh.  469 ;  Lobdell  r.  Hayes,  12  Gray,  237 ;  Kimball  v.  Sumner,  62 
Me.  305. 

*  Stearns  v.  Stearns,  1  Pick.  1.59,  Newcomb  v.  Stebbins,  9  jMet. 
544 ;  Choate  v.  Jacobs,  136  Mass.  299 ;  Brigham  v.  Elwell,  145  Mass, 
522 ;  and  cases  cited. 


294  PliOCEEDINGS    IN    THE    PROBATE    COURTS. 

suns,  appointed  by  the  court,  whose  award,  when  accepted 
by  the  court,  will  be  linal.^  The  executor  miay  be  required 
to  account  in  like  manner  for  rents  collected  by  him.^ 
The  rents  and  income  found  to  be  due  from  the  executor 
or  administrator  are  not  assets  of  the  estate  to  be  charged 
to  him  in  his  administration  account,  but  belong  to  the 
heirs  or  devisees.  If  the  executor  or  administrator  has 
an  interest  in  the  real  estate  as  heir  or  devisee  which 
entitles  him  to  possession,  he  is  not  held  to  account  for 
the  income  in  the  probate  court.  ^ 

A  special  administrator,  when  authorized  by  the  probate 
court  to  take  charge  of  the  real  estate  of  his  intestate,  is 
chargeable  with  the  rents. 

Debts  due  from  the  Executoi'  or  Administrator.  —  If  the 
administrator  is  himself  a  debtor  to  the  estate,  the  debt 
owed  by  him  is  regarded  as  assets  of  the  estate,  to  be 
accounted  for  by  him.  He  must  charge  himself  with  the 
amount  of  the  debt,  as  if  he  had  received  it  of  any  other 
person ;  ^  and  he  is  bound  to  answer  upon  oath  as  to  all 

1  R.  L.  c.  150,  §  6;  Choate  v.  Arrington,  116  Mass.  552;  Choate  v. 
Jacobs,  136  Mass.  299 ;  Brigham  v.  Elwell,  145  Mass.  522 ;  Cummings 
V.  Watson,  149  Mass.  263. 

2  Brooks  V.  Jackson,  125  Mass.  307. 

8  Palmer  v.  Palmer,  13  Gray,  326;  Almy  v.  Crape,  100  Mass.  218; 
Cummings  v.  Watson,  supra. 

*  Ipswich  Manufacturing  Co.  v.  Story,  5  Met.  310;  Winship  v.  Bass, 
12  Mass.  199;  Stevens  v.  Gaylord,  11  Mass.  266;  Tarbell  v.  Jewett, 
129  Mass.  457.  Debts  due  to  the  estate  of  a  testator  from  the  executor 
named  in  his  will,  and  from  a  firm  of  which  he  is  a  member,  are  to  be 
accounted  for  as  assets ;  although  he  and  his  firm  were  insolvent  at  the 
time  when  he  accepted  the  trust,  and  although  he  has  never  charged 
them  in  his  account,  and  an  account  has  been  allowed  in  which  they 
were  not  included,  but  were  mentioned  as  notes  which  it  had  been 
impossible  to  collect,  and  although  he  has  resigned  his  trust,  and  an 
administrator  de  bonis  non  has  been  appointed  in  his  place.  Lelaud  v. 
Felton,  1  Allen,  531. 


ACCOUNTS   OF   EXECUTORS,  ADMINISTRATOES,  ETC.        295 

facts  tending  to  show  that  he  was  indebted  to  the  deceased, 
even  as  to  facts  that  take  the  claim  out  of  the  operation 
of  the  statute  of  limitations,  though  it  may  be  apparently 
barred  by  that  statute.  ^ 

The  old  rule,  that  a  testator  by  making  a  debtor  his 
executor  thereby  releases  his  debt,  has  never  been  in 
force  in  this  state.  The  debt  is  assets  in  the  executor's 
hands  for  which  he  and  his  sureties  are  liable.  ^ 

WHAT   IS    ALLOWED   TO    THE   EXECUTOR   OR    ADMINISTRATOR. 

The  executor  or  administrator  of  a  solvent  estate  is 
allowed  to  credit  himself  in  his  account  with  all  sums  of 
money  paid  by  him  in  satisfaction  of  legal  demands  against 
the  estate,  but  not  with  money  paid  on  demands  for  which 
the  estate  was  not  liable.^ 

•  Sigourney  v.  Wetherell,  6  Met.  553. 

2  Ipswich  Manufacturing  Co.  v.  Story,  5  Met.  313;  Winship  v.  Bass, 
12  Mass.  199;  Stevens  v.  Gaylord,  11  Mass.  267  ;  Tarbell  v.  Jewett, 
129  Mass.  457. 

8  An  administrator  will  not  be  allowed  the  amount  paid  by  him  on 
a  promissory  note  made  by  the  intestate  for  which  there  was  no  legal 
consideration.     Phillips  o.  Frye,  14  Allen,  36. 

If  the  property  of  a  corpoiation  upon  a  final  settlement  of  its  affairs 
is  not  sufficient  to  pay  the  debts,  and  the  administrator  of  a  deceased 
member  pays  money  as  the  intestate's  contributory  share  to  make  good 
the  deficit,  —  there  being  no  legal  obligation  to  make  such  payment,  — 
he  will  not  be  allowed  the  amount  so  paid.  Ripley  v.  Sampson,  10  Pick. 
371. 

An  executor  has  no  authority  to  pay  money  to  extinguish  a  claim 
of  dower  in  land  belonging  to  the  estate  of  his  testator.  Forward  v. 
Forward,  6  Allen,  494. 

An  administrator  is  responsible  for  the  misapplication  of  money  paid 
in  good  faith  and  under  the  advice  of  counsel.  Boulton  v.  Beard, 
3  De  G.,  M.  &  G.  608. 

Taxes  paid  by  an  administrator  on  lands  in  another  state  where  he 
had  not  taken  out  administration  were  not  allowed  in  his  account, 
Jennison  r.  Hapgood,  10  Pick.  105.  See  Dunbar  v.  Tainter,  7  Cush 
574;  Rotch  v.  Morgan,  105  Mass.  426. 


296       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  estate  is  not  liable  for  money  paid  in  pursuance  of 
a  promise,  the  consideration  of  which  arises  after  the  death 
of  the  testator  or  intestate.  Upon  such  a  promise  the 
executor  or  administrator  may  be  personally  liable. 
Whether  the  amount  is  to  be  repaid  to  him  from  the  estate 
is  a  question  to  be  determined  by  the  probate  court, 
upon  the  settlement  of  his  account.  ^  It  would  be  neces- 
sary for  him  to  show,  in  support  of  his  application  for  an 
allowance  in  such  case,  that  the  payment  made  by  him 
was  beneficial  to  the  estate,  or  was  made  with  the  assent 
of  the  parties  interested. 

An  administrator  may  pay  assessments  upon  shares  in 
banks  and  other  corporations  which  he  holds  as  part  of 
the  assets  of  the  estate,  and  will  be  allowed  in  his  account 
for  such  payments,  provided  the  assessments  were  legally 
laid  and  the  payments  were  necessary  to  redeem  the  shares 
from  a  lien  created  by  the  assessment,  and  were  beneficial 

1  Kingman  v.  Soule,  132  Mass.  285;  Luscomb  v.  Ballard,  5  Gray, 
403;  Sumner  v.  Williams,  8  Mass.  162  ;  Davis  v.  French,  20  Me.  21. 

General  expenses  of  administration  incurred  for  the  benefit  of  the 
whole  estate  are  chargeable  to  capital,  and  not  to  income.  Bridge  v. 
Bridge,  146  Mass.  373. 

When  judgment  for  a  return  in  an  action  of  replevin  is  rendered 
against  an  executor  or  administrator,  the  goods  returned  by  him  shall 
not  be  considered  as  assets  in  his  hands;  and  if  they  have  been  in- 
cluded in  the  inventory,  it  shall  be  a  sufficient  discharge  for  the  execu- 
tor or  administrator  to  show  that  they  have  been  returned  in  pursuance 
of  such  judgment.     R.  L.  c.  172,  §  4. 

Whenever  personal  property  placed  in  the  hands  of  a  corporation 
or  an  individual  as  an  accumulating  fund  for  the  future  benefit  of 
heirs  or  other  persons  has  been  duly  assessed  to  such  heirs  or  per- 
sons according  to  the  provisions  of  clause  6,  §  23,  of  chap.  12  of  the 
Revised  Laws,  and  the  persons  so  taxed  neglect  to  pay  the  tax  for 
one  year  after  it  has  been  committed  to  the  collector,  the  collector 
may,  in  his  own  name,  maintain  an  action  of  contract  therefor  against 
said  trustee,  in  like  manner  as  for  his  own  debt;  and  the  amount 
thereof  paid  by  said  trustee  may  be  allowed  in  his  account  as  such 
trustee.     R.  L.  c.  13,  §  34. 


ACCOUNTS    OF   EXECUTORS,  ADMINISTRATORS,  ETC.         297 

to  the  estate.  And  if  he  acted  in  good  faith  he  would 
undoubtedly  be  protected,  even  if  the  shares  should  have 
subsequently  fallen  in  value  in  his  hands.  ^ 

The  executor  or  administrator  will  not  be  allowed  in  his 
account  for  debts  paid  by  him  after  they  had  become  barred 
by  the  statute  limiting  the  time  (two  years)  within  which 
suits  can  be  brought  against  executors  and  administrators 
who  have  given  legal  notice  of  their  appointment.  The 
executor's  promise  to  pay  a  claim  so  barred  cannot  affect 
the  estate.  2 

But  this  limitation  does  not  apply  to  debts  due  from  the 
deceased  to  the  executor  or  administrator,  which  may  be 
allowed  to  him  at  any  time  in  the  settlement  of  his 
account,  nor  to  advances  made  by  him,  in  the  course  of 
administration,  for  the  benefit  of  the  estate.^  Where  the 
administrator,  within  the  two  years,  assumed  liabilities 
in  the  adjustment  of  debts  due  from  the  estate,  he  was 
allowed  the  sums  paid  by  him  with  interest,  although  the 
payments  were  not  made  until  after  the  expiration  of  the 
two  years.* 

It  has  been  held  in  this  state  that  an  executor  or 
administrator  may  revive  by  a  new  promise  a  claim  barred 
by  the  general  statute  of  limitations,^  and  that  such  new 
promise  will  bind  the  estate  in  his  hands. ^     He  cannot, 

J  Ripley  v.  Sampson,  10  Pick.  371. 

2  Brown  c.  Anderson,  lo  Mass.  201  ;  Dawes  v.  Shed,  1.5  Mass.  6; 
Emerson  i'.  Thompson,  16  Mass.  429;  Waltham  Bank  v.  Wright, 
8  Allen,  121 ;  Ames  c.  Jackson,  115  Mass.  508,  and  cases  cited. 

8  Dickinson  v.  Arms,  8  Pick.  394;  Forward  v.  Forward,  6  Allen, 
494;  Munroe  v.  Holmes,  13  Allen,  109  ;  Ames  v.  Jackson,  supra. 

*  Ames  V.  Jackson,  supra. 

5  Foster  v.  Starkey,  12  Cush.  324;  Fisher  v.  Metcalf,  7  Allen, 
209 ;  Slattery  v.  Doyle,  180  Mass.  27. 

6  Manson  v.  Felton,  13  Pick.  206;  Emerson  v.  Thompson,  16  l\Iass. 
429 ;  Foster  v.  Starkey,  supra. 


298       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

however,  revive  a  claim  held  by  himself.  ^  There  seems 
to  be  no  good  reason  for  allowing  an  executor  or  adminis- 
trator for  payments  made  on  debts  barred  by  either  statute 
of  limitation. 

If  the  estate  has  been  represented  insolvent,  the  executor 
is  not  allowed  in  his  first  account  for  the  payment  of 
debts,  he  having  no  authority  to  make  such  payments 
except  under  a  decree  of  distribution  issued  by  the  court. ^ 
He  credits  himself  only  with  the  expenses  of  the  last  sick- 
ness and  funeral  of  the  deceased,  charges  of  administra- 
tion, the  loss,  if  any,  necessarily  sustained  by  the  estate 
in  his  hands,  and  with  the  amount  of  the  allowances,  if 
any,  made  by  the  court  to  the  widow  or  minor  children  of 
the  deceased.  The  balance  thus  exhibited  remains  in  his 
hands  until  he  is  ordered  by  the  court  to  distribute  it 
among  the  creditors. 

Funeral  Charges  and  Expenses  of  the  Last  Sickness.  — 
The  executor  or  administrator  is  allowed  in  his  account 
all  reasonable  sums  paid  for  funeral  expenses.  The 
amount  to  be  allowed  for  such  expenses  must  depend,  in 
some  degree,  upon  the  condition  of  the  estate.  If  the 
funeral  was  under  the  direction  of  the  family  of  the 
deceased,  and  the  estate  is  solvent,  the  sum  asked  for 
such  charges  is  usually  allowed ;  but  no  extravagant 
expenses  will  be  allowed  as  against  the  creditors  of  an 
insolvent   estate.^    All  expenses  of   the  last  sickness  of 

1  Richmond,  petitioner,  2  Pick.  567;  Grinnell  v.  Baxter,  17  Pick. 
383. 

2  He  is  not  allowed  for  sums  paid  on  debts  during  the  first  year  of 
his  administration,  though  paid  without  knowledge  that  the  estate  was 
insolvent;  nor  for  personal  property  applied  by  him  to  repairs  and 
improvements  of  the  real  estate,  though  so  applied  in  executing  an 
agreement  of  the  intestate.     Cobb  v.  Muzzey,  13  Gray,  57. 

•  A  reasonable  sum  expended  for  a  burial  lot  and  for  a  monument 


ACCOUNTS   OF   EXECUTORS,  ADMINISTRATORS,  ETC.        299 

the  deceased  paid  by  the  administrator  arc  allowed  in  his 
account.  ^ 

Charges  of  Administration.  —  Executors  and  adminis- 
trators are  allowed  their  reasonable  expenses  incurred  in 
the  execution  of  their  respective  trusts,  and  such  compen- 
sation for  their  services  as  the  court  in  which  their 
accounts  are  settled  considers  just  and  reasonable. ^ 

Under  the  head  of  expenses  of  administration  are 
included  all  sums  which  have  been  paid  by  the  executor 

may  be  allowed  as  part  of  the  funeral  expenses.  R.  L.  c.  150,  §  12. 
Such  a  provision  in  a  will  will  not  be  void  as  a  perpetuity.  Green  v. 
Hogan,  153  Mass.  466. 

A  demand  for  mourning  furnished  to  the  widow  and  family  of  the 
deceased  is  not  a  funeral  expense.  Johnson  v.  Baker,  2  Carr.  &  Payne, 
207;  Griswold  v.  Chandler,  5  N.  H.  492;  Macknet's  Executors  v. 
Macknet,  24  N.  J.  Eq  296  But  see  Wood's  Estate,  1  Ashmead, 
and  Flintham's  Appeal,   11   Serg.  &  R.   16. 

^  A  testator  at  a  di.stance  from  home  during  his  last  sickness  sent 
for  his  wife  and  heirs,  but  died  before  they  arrived.  The  executor 
was  allowed  to  charge  in  his  account  their  expenses,  which  he  had  paid 
to  them.  Jennison  v.  Hapgood,  10  Pick.  88.  Whenever  a  decedent 
appoints  one  or  more  executors  or  trustees,  and  in  lieu  of  their  allow- 
ance makes  a  bequest  or  devise  of  property  to  them  which  would 
otherwise  be  liable  to  the  tax  on  collateral  legacies,  or  appoints  them 
his  residuary  legatees,  and  said  bequests,  devises,  or  residuary  legacies 
exceed  what  would  be  a  reasonable  compensation  for  their  services,  such 
excess  shall  be  liable  to  such  tax,  and  the  probate  court  having  juris- 
diction of  their  accounts,  upon  the  application  of  any  one  interested, 
or  the  treasurer  of  the  commonwealth,  shall  fix  such  compensation. 
R.  L.  c.  15,  §  3. 

2  R.  L.  c.  150,  §  14;  Edwards  v.  Ela,  5  Allen,  87.  When  an  ex- 
ecutor's final  account  comes  before  the  supreme  court  of  probate  on 
appeal,  the  compensation  allowed  him  is  subject  to  revision,  as  well  as 
the  other  items.     Bridge  v.  Bridge,  146  Mass.  377. 

A  special  administrator  by  leave  of  the  probate  court  may  pay  from 
the  personal  estate  in  his  hands  the  expenses  incurred  by  the  executor 
named  in  the  will  of  a  deceased  person  in  proving  the  same  in  the 
probate  court,  or  in  sustaining  the  proof  thereof  in  the  supreme 
court,  and  also,  after  notice,  such  debts  due  from  the  deceased  as  the 
probate  court  may  approve.     R.  L.  c.  137,  §  13. 


300       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

iu  the  course  of  a  faithful  and  prudent  administration  ; 
such  as  the  expense  of  appraising  the  estate,  of  collecting 
the  effects  and  paying  the  debts,  of  attending  the  probate 
and  other  courts  upon  business  of  the  estate,  of  adver- 
tising as  required  by  law  or  any  order  of  the  court,  and 
sums  paid  for  legal  and  other  necessary  assistance.^  The 
expenses  of  assigning  dower,  or  making  partition  of  land 
among  the  heirs  or  devisees,  are  not  charges  of  adminis- 
tration, and  are  not  allowed  in  the  administration  account. 

It  is  no  part  of  the  duty  of  the  executor  or  administrator 
to  advance  money  for  the  payment  of  debts  and  necessary 
expenses ;  but  if,  not  having  cash  assets  in  his  hands,  he 
makes  advances  for  the  benefit  of  the  estate,  he  is  entitled 
to  interest  on  the  money  advanced.^ 

If  judgment  is  rendered  against  an  executor  or  admin- 
istrator for  costs  in  a  suit  commenced  or  prosecuted  by  him 

^  Administrator's  charges  for  attending  probate  court  at  hearings  in 
relation  to  estates  connected  with  that  of  his  intestate,  for  inquiring  into 
and  ascertaining  the  existence  of  property  in  another  jurisdiction  sup- 
posed to  belong  to  the  estate,  and  for  taking  legal  advice  in  respect  to 
such  property,  although  it  could  be  administered  only  in  the  other 
jurisdiction,  allowed.  Wendell  r.  French,  19  N.  H.  205.  In  cases 
which  are  contested  before  a  probate  court  or  before  the  supreme 
court  of  probate,  costs  and  expenses  in  the  discretion  of  the  court  may 
be  awarded  to  either  party,  to  be  paid  by  the  other  party,  or  they  may 
be  awarded  to  either  or  both  parties,  to  be  paid  out  of  the  estate  which 
is  the  subject  of  the  controversy,  as  justice  and  equity  may  require. 
If  costs  are  awarded  to  be  paid  by  one  party  to  the  other,  execution 
may  issue.  R.  L.  c.  162,  §  44.  But  the  probate  court  has  no  power 
imder  this  statute  to  compel  a  guardian,  on  a  petition  by  counsel,  to 
pay  for  professional  services  rendered  for  the  infant  ward.  VVillard 
V.  Lavender,  147  Mass.  15. 

Money  paid  with  the  approval  of  the  judge  of  probate  to  any  cor- 
poration duly  authorized  to  act  as  surety  of  probate  bonds,  or  to  any 
person  acting  as  surety  of  probate  bonds,  may  be  allowed  in  the  discre- 
tion of  the  court  as  a  charge  against  the  estate.     R.  L.  c.  150,  §  15. 

2  Jennison  v.  Hapgood,  10  Pick.  102 ;  Ames  v.  Jackson,  115  Mass. 
508.     See  May  v.  Skinner,  152  Mass.  328. 


ACCOUNTS    OF   EXECUTORS,    ADMINISTRATORS,   ETC.      301 

in  that  capacity,  the  estate  in  his  hands  cannot  be  taken 
in  execution  therefor,  but  execution  is  awarded  against  him 
as  for  his  own  debt,  although  the  estate  has  been  repre- 
sented insolvent ;  and  the  amount  paid  by  him  thereupon  is 
allowed  in  his  administration  account,  unless  it  appears  to 
the  probate  court  that  the  suit  was  commenced  or  prose- 
cuted unnecessarily  or  without  reasonable  cause. ^  But 
such  costs  are  not  allowed  in  the  administration  account, 
until  they  have  been  actually  paid  by  him.  Their  pay- 
ment is  a  condition  precedent  to  their  allowance.^ 

Since  the  repeal  of  the  statute  allowing  to  executors 
and  administrators  stated  commissions  on  the  sums  ac- 
counted for  by  them,  there  has  been  no  rule  common  to 
all  the  probate  courts  in  regard  to  their  compensation. 
The  executor  or  administrator  usually  credits  himself  in 
his  account  with  such  a  sum  as  he  considers  himself 
entitled  to  receive,  and  the  court,  in  its  discretion,  allows 
the  sum  asked  for,  or  a  less  sum,  regard  being  had  to  the 
character  of  the  services  rendered  necessary  by  the  con- 
dition of  the  estate,  and  actually  performed.^ 

1  R.  L.  c.  172,  §  6;  Hardy  v.  Call,  16  Mass.  530;  Greenwood  v. 
McGilvray,  120  Mass.  516 ;  Perkins  v.  Fellows,  136  Mass.  294. 

2  Thacher  v.  Dunham,  5  Gray,  26. 

8  Unfaithful  administration  will  not  deprive  an  executor  of  his 
right  to  compensation  for  his  services  so  far  as  they  have  been  bene- 
ficial to  the  estate.     Jennison  v.  Hapgood,  10  Pick.  112. 

When  services  not  obviously  alien  to  the  administration  have  been 
rendered  at  the  special  request  and  advice  of  a  party  interested  in  the 
estate,  he  is  estopped  from  objecting  to  the  allowance  of  a  just  com- 
pensation for  them  in  the  settlement  of  the  administrator's  account. 
Wendell  v.  French,  19  N.  H  205. 

Upon  a  controversy  between  the  administrator  and  the  heirs, 
charges  by  him  of  time  and  money  expended  while  endeavoring  to 
effect  a  private  settlement  with  them  are  not  proper  items  of  charge 
against  the  estate  as  expenses  of  administration.  Clark  v.  Clay,  11 
Foster  (N.  H.)  393.     The  executor  was  allowed  a  charge  for  trans- 


302       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

An  executor  is  sometimes  entitled  to  credits  in  his 
account  that  he  could  not  claim  as  administrator  of  an 
intestate  estate.  It  being  his  duty  to  administer  accord- 
ing to  law  and  the  will  of  his  testator,  he  may  be  called 
upon,  in  order  to  carry  out  the  provisions  of  the  will,  to 
perform  services  and  incur  expenses  that  would  be  irreg- 
ular and  unnecessary  in  a  case  of  ordinary  administration. 
For  all  such  services  faithfully  performed,  and  expenses 
properly  incurred,  he  is  entitled  to  be  allowed.^ 

Loss  on  Sale  of  the  Personal  Estate.  —  The  executor  or 
administrator  is  not  required  to  sustain  any  personal 
loss  in  consequence  of  the  decrease  or  destruction,  without 
his  fault,  of  any  part  of  the  estate.  If  he  has  sold  it  for 
less  than  the  appraised  value,  he  will  be  allowed  in  his 
account  for  the  loss,  if  it  appears  that  the  sale  was  expe- 
dient and  for  the  interest  of  all  concerned  in  the  estate ;  ^ 
and  he  is  entitled  to  be  allowed  for  the  amount  of  any 
debts  inventoried  as  due  to  the  deceased,  if  it  appears 
to  the  court  that  they  remain  uncollected  without  his 
fault. 

Allowances  to  the  Widow  and  Minor  Children.  —  The 
executor  or  administrator  is  allowed  in  his  account  for  all 
sums  paid  by  him,  under  order  of  the  probate  court,  as 
allowances  to  the  widow  or  minor  children  of  the 
deceased;  but  if  he  pays  money  for  their  support  without 

ferring  personalty'  to  the  special  administrator.     May  v.  Skinner,  149 
Mass.  375. 

1  Where  an  executor,  to  whom  real  estate  is  devised  in  trust,  is 
authorized  by  the  will  to  take  down  any  part  of  the  testator's  buildings 
and  to  rebuild,  to  erect  additional  buildings,  and  to  hire  money  for  the 
purpose  of  bettering  the  trust  estate,  he  may  advance  his  own  money  for 
the  like  purposes,  and  charge  it  in  his  general  administration  account. 
Watts  V.  Howard,  7  Met.  478.     And  see  Wiggin  v.  Swett,  6  Met.  194. 

2  R.  L.  c.  150,  §4. 


ACCOUNTS   OF   EXECUTORS,  ADMINISTRATORS,  ETC.        303 

being  first  authorized  by  the  court,  he  makes  the  payment 
at  his  own  risk.^ 

Debts  due  the  Executor  or  Administrator  from  the 
Deceased,  — If  the  executor  or  administrator  is  himself 
a  creditor  of  the  estate,  he  should  procure  the  assent  of 
•the  heirs,  or  other  parties  interested  in  the  estate,  to  the 
allowance  of  his  claim,  before  he  presents  his  account  to 
the  probate  court.  If  his  claim  is  disputed  by  any  person 
interested  in  the  estate,  he  must  file  in  the  probate  court 
a  separate  statement,  setting  forth  distinctly  and  fully 
the  nature  and  grounds  of  his  claim;  and  it  may  then 
be  submitted  under  an  order  of  the  court  to  one  or  more 
arbitrators,  to  be  agreed  on  by  the  claimant  and  the  party 
objecting.  The  court  has  like  power  to  discharge  the 
rule  by  which  the  claim  is  referred,  and  to  reject  and 
disallow  the  award,  or  to  recommit  it  to  the  arbitrators, 
as  may  be  exercised  by  the  common  law  courts  with  regard 
to  cases  referred  by  a  rule  of  those  courts.  The  award 
of  the  arbitrators,  if  accepted  by  the  probate  court,  is 
final  and  conclusive. 

If  the  parties  do  not  agree  in  the  appointment  of  arbi- 
trators, or  if  the  award  is  not  confirmed  by  the  probate 
court,  the  court  will  decide  on  the  claim;  and  if  either 
party  appeals  from  its  decision  to  the  supreme  court  of 
probate,  either  party  or  the  court  may  have  the  claim 
submitted  to  a  jury,^ 

If  the  claim  of  the  executor  or  administrator  results 

1  Washburn  v.  Hale,  10  Pick.  429;  Brewster  v.  Brewster,  8  Mass. 
131.  The  question  whether  an  allowance  to  a  widow  from  her 
husband's  estate  was  properly  made  by  the  probate  court  is  not  open 
on  a  hearing  on  the  administrator's  account.  Newell  v.  West,  119 
Mass.  520. 

2  R.  L.  c.  141,  §§  6,  7;  Newell  v.  West,  149  Mass.  528  ;  Forbes  v. 
McHugh,  152  Mass.  41o;  Buckley  v.  Buckley,  157  Mass.  536. 


304       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

from  a  course  of  dealing,  or  involves  mutual  debts  and 
credits,  the  balance  only  is  the  actual  debt,  and  the  whole 
account  on  both  sides  must  be  examined,  in  order  to 
ascertain  that  balance ;  and,  of  course,  all  the  items  on 
both  sides  are  put  in  issue.  ^ 

The  executor  or  administrator  is  entitled  to  interest 
on  his  claim  only  for  such  a  length  of  time,  after  taking 
administration,  as  is  reasonably  needed  for  the  settlement 
of  the  estate.  2 

Distributive  payments  by  an  executor  to  residuary  lega- 
tees are  not  allowed  in  his  account  rendered  to  the  pro- 
bate court.  The  settlement  of  the  account  determines  the 
amount  of  residue  subject  to  distribution,  but  not  the 
rights  or  shares  of  those  who  are  entitled.^ 

Before  delivering  any  specific  legacy  or  property  subject 
to  a  succession  tax  to  any  person,  the  executor,  adminis- 
trator, or  trustee  shall  deduct  the  tax  therefrom.  If  such 
legacy  is  given  in  money  to  any  person  for  a  limited  period, 
the  tax  on  the  whole  amount  shall  be  retained.* 

It  may  be  necessary  for  the  executor  or  administrator 
to  render  more  than  one  account  of  his  administration  of 
the  estate  committed  to  him.  He  is  required  to  render  an 
account  at  least  once  a  year  until  his  trust  is  fulfilled, 
unless  he  is  excused  therefrom  in  any  year  by  the  court, 
and  at  such  other  times  as  the  court  may  order.  If  he 
receives  assets,  though  they  come  to  his  hands  more  than 

1  Willey  V.  Thompson,  9  Met.  329. 

2  Riclimond,  Petitioner,  2  Pick.  567. 

3  Granger  v.  Bassett,  98  Mass.  462;  Browner.  Doolittle,  151  Mass. 
596,  and  cases  cited.  An  executor  acting  under  the  will,  in  setting  oflf 
debts  due  the  testator  from  the  legatees  on  promissory  notes  bearing 
interest,  is  not  entitled  in  his  account  to  charge  interest  after  the 
death  of  the  testator.     Taylor  v.  Taylor,  145  Mass.  239. 

*  R.  L.  c.  15,  §§  5,  7. 


ACCOUNTS   OF   EXECUTORS,  ADMINISTRATORS,  ETC.        305 

twenty  years  after  the  supposed  final  settlement  and  dis- 
tribution of  the  estate,  he  is  bound  to  account  for  them.^ 
In  stating  any  account  after  the  first,  he  brings  forward 
the  balance  of  his  last  preceding  account,  and  charges 
himself  with  the  amount  of  all  sums  received  by  him  not 
previously  accounted  for;  and  asks  to  be  allowed  for  the 
amount  of  any  additional  payments  made  by  him  and 
expenses  of  administration.  And  he  must  annex  sched- 
ules giving  full  details  of  such  receipts  and  expenditures. 

FORM   OF   guardian's    AND   TRUSTEE'S   ACCOUNTS. 

The  guardian  or  trustee  presents  his  account  in  substan- 
tially the  same  form  as  that  of  an  executor  or  adminis- 
trator. He  charges  himself  with  the  amount  of  the  assets 
received  by  him,  and  asks  to  be  allowed  for  the  payments 
made  by  him  and  the  charges  of  the  trust.  With  the 
account  must  be  filed  a  schedule  stating  the  several  sums 
received  by  him,  the  person  of  whom,  and  the  time  when, 
each  sum  was  received;  a  second  schedule  containing  a 
full  statement  of  the  payments  and  charges;  and  a  third, 
stating  particularly  the  manner  in  which  any  balance 
remaining  in  his  hands  is  invested. 

WITH    WHAT   THE   GUARDIAN    OR   TRUSTEE   IS   CHARGEABLE. 

The  guardian  or  trustee  is  required  to  charge  himself 
with  the  value  of  the  personal  estate  in  his  hands,  accord- 
ing to  the  inventory ;  with  the  gain,  if  any,  realized  from 
its  sale ;  with  the  rents  and  profits  of  the  real  estate ;  ^ 
with  the  proceeds  of  real  estate  sold  or  mortgaged  by  him ; 

1  White  V.  Swain,  3  Pick.  365;  Prescott  v.  Read,  8  Cush.  365. 

2  RathbuQ  V.  Coltou,  15  Pick.  471 ;  Root  v.  Yeomans,  15  Pick.  488. 

20 


306       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

and  with  all  sums  received  by  him  in  his  official  capacity, 
from  whatever  source.  He  is  bound  to  use  the  same 
degree  of  diligence  in  the  recovery  and  preservation  of  the 
property  of  his  ward  or  cestui  que  trust  that  is  required 
of  executors  and  administrators  in  the  administration  of 
the  estates  intrusted  to  them,  and  he  is  held  responsible 
for  any  loss  occasioned  by  his  neglect. 

He  is  held  strictly  to  account  for  the  interest  arising 
from  the  trust  fund.  The  general  rule  is  that  he  is  bound 
to  take  the  same  care  of  the  trust  fund  as  a  discreet  and 
prudent  man  would  take  of  his  own  property;  to  manage 
it  for  the  exclusive  benefit  of  the  ward  or  cestui  que  trust, 
and  to  make  no  profit  or  advantage  out  of  it  for  himself; 
to  keep  it  at  all  times,  when  practicable,  profitably 
invested,  and  punctually  to  account  for  the  income  as 
well  as  the  principal.  If  any  of  these  duties  are  neg- 
lected, the  loss  resulting  from  the  neglect  must  fall  upon 
him,  and  not  on  the  ward  or  cestui  que  trust.  Hence,  if 
through  gross  carelessness  or  ignorance  he  makes  a  bad 
investment,  and  thereby  loses  the  whole  or  part  of  the 
trust  fund,  he  will  be  held  to  replace  it,  and  must  charge 
himself  with  it  in  his  account.^  But  he  is  not  liable  for 
losses  occasioned  by  bad  investments,  provided  he  acts  in 
good   faith   and   with   sound    discretion. ^     If  he   wholly 

1  Harding  v.  Larned,  4  Allen,  426;  Clark  v.  Garfield,  8  Allen,  427; 
Richardson  v.  Boynton,  12  Allen,  138;  Kimball  v.  Perkins,  130  Mass. 
141.  A  guardian  is  liable  to  his  ward  for  the  rent  of  the  ward's  real 
estate  which  he  has  received,  or  which  he  might  have  received  by  the 
use  of  due  diligence.  Shurtleff  v.  Rile,  140  Mass.  213.  Where  the 
trustee  of  an  estate  held  in  trust  has  been  obliged  to  pay  taxes  upon 
an  unproductive  investment  received  by  him  from  his  predecessor,  this 
expense  is  not  to  be  deducted  from  the  income  of  other  productive 
investments,  but  is  to  be  regarded  as  a  charge  upon  the  principal  of 
the  unproductive  investment.     Stone  v.  Littlefield,  151  Mass.  485. 

2  Kimball  v.  Perkins,  130  Mass.  141.     A  loan  by  a  guardian,  upon 


ACCOUNTS    OF    EXECUTORS,  ADJUINISTRATORS,  ETC.        307 

neglects  to  invest  the  trust  funds,  he  is  chargeable  with 
the  income  that  would  have  been  derived  from  a  proper 
investment;^  and  in  cases  of  gross  neglect,  or  if  he 
employs  the  money  in  his  own  business,  he  is  liable  to  be 
charged  with  compound  interest.^  He  may  not  be  charge- 
able with  interest  from  the  date  of  his  appointment,  or  of 
his  receipt  of  the  money.     He  is  entitled  to  a  reasonable 

the  promissory  note  of  the  borrower,  payable  in  one  year  with  interest, 
secured  by  a  pledge  of  shares  in  a  manufacturing  corporation,  the 
amount  of  the  loan  being  about  three-quarters  of  the  par  value  of  the 
shares,  and  less  than  three-quarters  of  their  market  value,  was  held  to 
be  an  investment  made  with  sound  discretion;  and  although  the  bor- 
rower failed  before  the  note  became  due,  and  the  shares  fell  in  value 
below  the  amount  of  the  note,  the  guardian  was  held  not  to  be  respon- 
sible for  the  loss. 

And,  the  guardian  having  sold  the  shares  and  taken  the  purchaser's 
note  for  the  price,  with  two  indorsers,  and  the  notes  of  another  person 
secured  by  a  mortgage  on  land,  he  was  held  to  have  exercised  a  sound 
discretion,  and  not  to  be  responsible  for  a  loss  occasioned  by  the  fail- 
ure of  all  the  parties  to  the  notes,  and  a  fall  in  the  value  of  the  mort- 
gaged premises.  Lovell  v.  Minot,  20  Pick.  116.  And  see  Harvard 
College  V.  Amory,  9  Pick.  459;  Thompson  v.  Brown,  4  Johns.  Ch. 
628;  Bowker  v.  Pierce,  130  Mass.  262;  Hunt,  Appellant,  141  IMass. 
515;  McKim  v.  Hibbard,  142  Mass.  422;  Dickinson,  Appellant,  152 
Mass.  184. 

1  Mattoon  v.  Cowing,  13  Gray,  387;  McKim  v.  Morse,  130  Mass. 
439. 

2  Boynton  v.  Dyer,  18  Pick.  1.  Where  the  guardian  had  received 
rents  and  income  from  stocks,  and  had  rendered  no  account  for  many 
years,  it  was  ordered  that  an  account  should  be  settled,  with  a  rest  for 
every  year,  and  the  balance  thus  struck  carried  forward,  to  be  again 
on  interest  whenever  the  sum  should  be  so  large  that  a  trustee  acting 
faithfully  and  discreetly  would  have  put  it  in  a  productive  state ;  and 
$500  was  held  to  be  such  a  sum.  Robbins  v.  Hayward,  1  Pick.  528, 
note. 

Simple  interest  only  was  allowed  on  a  note  due  on  demand  from 
the  guardian  to  the  ward,  the  note  being  so  small  that  it  was  not  a 
sufficient  object  to  make  a  new  investment  with  the  interest.  Fay  v. 
Howe,  1  Pick.  527.  See  Bassett  c  Granger,  140  Mass.  183 ;  McKim 
V.  Blake,  139  Mass.  593. 


308       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

time  in  which  to  make  the  investment^  and  the  length  of 
time  that  will  be  deemed  reasonable  for  that  purpose 
must  depend  uj)on  the  condition  of  the  property  at  the 
time  he  received  it,  his  opportunity  of  making  investments, 
or  other  circumstances  controlling  his  proceedings. ^ 

If  the  guardian  is  also  executor  of  the  will  in  which  a 
legacy  is  given  to  his  ward,  he  cannot  charge  himself  in 
his  guardianship  account  with  the  amount  of  the  legacy 
until,  by  the  terms  of  the  will,  it  becomes  payable;  until 
that  time  he  must  account  for  it  as  executor.  This  dis- 
tinction, while  it  does  not  affect  his  personal  liability, 
may  be  of  importance  to  his  sureties.^ 

The  guardian  shall  settle  all  accounts  of  his  ward,  and 
sue  for  and  receive  all  debts  due  to  him,  or,  with  the  ap- 
probation of  the  probate  court,  may  compound  for  the 
same,  and  give  a  discharge  to  the  debtor  on  receiving  a 
fair  dividend  of  his  estate,^ 

1  In  Boynton  v.  Dyer,  18  Pick.  1,  one  year  was  deemed  a  reason- 
able time;  in  Clarkson  v.  De  Peyster,  2  Wend.  77,  six  months  were 
held  sufficient;  and  in  Schieffelin  v.  Stewart,  1  Johns.  Ch.  620,  two 
years  were  allowed. 

2  Livermore  v.  Bemis,  2  Allen,  394.  A  cestui  que  trust  cannot 
maintain  an  action  for  money  had  and  received  against  the  trustee, 
under  a  testamentary  trust,  although  a  balance  appears  by  his  accounts 
to  be  due,  if  the  trust  is  still  open  and  there  has  not  been  a  final  set- 
tlement of  his  accounts  in  the  probate  court.  Upham  v.  Draper,  157 
Mass.  292. 

3  R.  L.  c.  145,  §  25.  A  guardian  has  no  title  to  his  ward's  property 
and  cannot  maintain  a  bill  in  equity  in  his  own  name  to  avoid  a  con- 
veyance or  transfer  by  the  ward  of  his  property.  Lombard  v.  Morse, 
155  Mass.  136. 

A  guardian  has  no  authority  to  withdraw  from  a  bank  funds  due 
to  his  ward  as  administrator  of  an  estate.  Ryan  v.  North  End  Savings 
Bank,  168  Mass.  215. 

A  suit  may  be  brought  in  the  name  of  an  infant  as  well  by  his 
guardian  as  by  his  next  friend.     Burke  v.  Burke,  170  Mass.  499. 


ACCOUNTS   OF   EXECUTORS,   ADMINISTRATORS,   ETC.      309 


WHAT   IS    ALLOWED   TO    THE   GUARDIAN   OR   TRUSTEE. 

The  guardian  is  allowed  to  credit  himself  with  all  sums 
properly  paid  by  him  for  the  support  and  education  of  his 
ward.  He  may  expend  a  part  or  the  whole  of  the  income 
of  the  ward's  estate  for  these  purposes,  as  occasion  re- 
quires, and  if  the  income  is  not  sufficient,  the  principal ; 
but  such  expenses  must  be  consistent  with  a  prudent  man- 
agement of  the  estate.  If  the  Avard  is  a  minor,  and  has  a 
father  living,  the  expense  of  his  maintenance  and  educa- 
tion is  to  be  paid  by  the  father,  unless  the  ward's  property 
is  sufficient  to  support  him  in  a  manner  more  expensive 
than  his  father  can  reasonably  afford ;  in  which  case  the 
expense  of  the  maintenance  and  education  of  the  minor 
may  be  defrayed  out  of  his  own  property,  in  whole  or  in 
part,  as  the  probate  court  deems  reasonable.^  If  the 
ward  is  a  married  woman,  the  guardian  cannot  expend 
her  estate  for  the  support  of  herself  and  her  family, 
unless  authorized  by  the  court  on  account  of  the  inability 

1  R.  L.  c.  145,  §  29;  Strong  v.  Moe,  8  Allen,  125.  A  husband  who 
receives  into  his  family  the  children  of  his  wife  by  a  former  marriage 
stands  to  them  in  loco  parentis,  and,  in  the  absence  of  express  contract 
or  of  circumstances  showing  a  different  arrangement,  has  a  right  to 
their  services,  and  is  liable  for  their  support  and  education.  And 
where,  for  seven  years,  he  has  lived  in  a  house  belonging  to  his  wife 
and  her  three  children  by  a  former  marriage,  has  been  appointed 
guardian  of  the  children,  and  kept  them  in  the  house  with  himself 
and  their  mother,  has  no  property  of  his  own,  has  earned  only  enough 
during  the  time  to  support  the  united  family,  and  has  sold  the  real 
estate  of  his  wards  by  leave  of  court,  he  is  not  to  be  charged  in  his 
account  with  any  previous  rent  thereof,  or  credited  with  taxes  paid 
thereon,  or  for  the  board  and  clothing  of  his  wards,  but  may  be  allowed 
a  reasonable  amount  paid  for  the  expense  of  one  of  his  wards  at  a 
boarding-school.  Mulhern  v.  McDavitt,  IG  Gray,  404.  See  Wilkes  r. 
Rogers,  6  Johns.  566. 


310       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

of  the  husband  suitably  to  maintain  her  and  them,  or  for 
other  cause  which  the  court  deems  reasonable.^ 

The  probate  court,  on  the  application  of  the  guardian 
of  an  insane  person,  or  of  a  child,  or  the  guardian  of  a 
child  of  an  insane  person,  and  after  notice  to  all  other 
persons  interested,  may  authorize  and  require  the  guardian 
of  the  insane  person  to  apply  such  portion  as  the  court 
may  direct  of  the  income  of  the  ward  which  is  not 
required  for  his  maintenance  and  support,  to  the  mainte- 
nance and  support  of  his  children.^ 

In  all  cases,  the  amounts  to  be  allowed  to  the  guardian 
in  his  account  of  his  ward's  expenses  will  be  determined 
with  reference  to  the  condition  and  circumstances  of  the 
ward.^ 

A  claim  for  damages  for  a  tort  by  a  guardian  against 
his  ward  cannot  be  allowed  in  his  account.* 

If  the  guardian  has  advanced  his  own  money  for  the 
payment  of  debts  and  expenses  of  his  ward,  under  circum- 
stances that  render  that  course  of  proceeding  proper,  he 
is  entitled  to  interest  on  the  money  so  advanced.^ 

1  R.  L.  c.  145,  §  14. 

2  Ibid.  §  30. 

'  The  guardian  (of  an  insane  person)  is  appointed  for  the  welfare, 
comfort,  and  security  of  the  ward,  and  not  for  the  increase  of  the 
estate  in  his  hands  by  accumulations  from  the  income,  in  order  to 
enlarge  the  wealth  of  remote  or  collateral  relatives  who  may  ultimately 
succeed  to  the  inheritance.  It  is  no  part  of  his  duty  to  diminish  the 
reasonable  comforts  of  his  ward,  or  to  prevent  him  from  enjoying  such 
luxuries,  or  indulging  such  tastes,  as  would  be  allowable  and  proper 
in  the  case  of  a  man  similarly  situated  in  other  respects,  but  m  the 
full  possession  of  his  faculties.  Ames,  J.,  in  May  v.  May,  109  Mass. 
256. 

*  Brown  v.  Howe,  9  Gray,  84.  Nor  will  an  action  of  contract  for 
necessaries  lie.     McLane  v.  Curran,  133  Maes.  532. 

6  Hayward  v.  Ellis,  13  Pick.  272. 


ACCOUNTS    OF   EXECUTORS,    ADMINISTRATORS,    ETC.      311 

Guardians  and  trustees  are  allowed  for  all  necessary 
expenses  incurred  in  the  execution  of  their  respective 
trusts,  and  such  compensation  for  their  services  as  the 
court  may  consider  just  and  reasonable.^ 

1  Urann  v.  Coates,  117  Mass.  41;  TurnbuU  v.  Pomeroy,  140  Mass. 
117.  Where  the  guardian  of  an  insane  person  continued  the  ward's 
business  with  advantage  to  the  estate  and  -with  the  concurrence  of  all 
the  parties  interested,  and  erected  a  building  for  the  use  of  the  busi- 
ness on  land  of  the  ward's  wife,  he  was  not  allowed  in  his  account  for 
the  cost  of  the  building,  but  was  allowed  rent  for  it.  IMurphy  v. 
Walker,  131  Mass.  341. 

Expenses  of  the  guardian  incurred  in  resisting,  in  good  faith,  the 
ward's  application  for  a  revocation  of  the  guardianship,  were  allowed 
in  his  account.     Palmer  v.  Palmer,  1  Chandler  (N.  H.),  418. 

A  guardian  who  is  also  trustee  is  not  allowed  full  compensation  in 
each  capacity  for  the  same  service.     Blake  v.  Pegram,  101  Mass.  592. 

A  trustee  or  guardian  is  not  allowed  in  his  account  for  any  part  of 
the  expenses  of  a  controversy  occasioned  in  a  great  measure  by  his 
own  fault.  Blake  v.  Pegram,  109  Mass.  541;  Urann  v.  Coates,  117 
Mass.  44. 

He  is  not  allowed  compensation  for  changing  investments  of  his 
ward's  property,  or  making  repairs  thereon,  in  the  form  of  com- 
missions on  the  amounts  invested  or  expended.  May  v.  May,  109 
Mass.  252. 

An  agreement  made  by  a  trustee  with  his  cestui  que  trust  as  to  the 
amount  of  compensation  he  shall  receive  is  not  invalid  if  the  cestui  que 
t7-ust  is  sui  juris  and  competent  to  act,  and  no  fraud  is  practised  or 
advantage  taken ;  and  such  agreement  is  to  be  considered  in  deter- 
mining the  amount  of  the  trustee's  charges.  Bowker  v.  Pierce,  130 
Mass.  262. 

A  guardian  who  charges  himself  in  his  account  with  a  large  surplus 
of  his  ward's  income  and  interest  thereon,  but  refuses  to  disclose  what 
use  he  has  made  of  it,  is  presumed  to  have  derived  profits  from  its  use 
sufficient  to  compensate  him  for  the  care  of  it,  and  is  not  entitled  to 
other  compensation.  Blake  v.  Pegram,  109  Mass.  541 ;  Pierce  v. 
Prescott,  128  Mass.  140. 

A  trustee  is  not  allowed  compensation  for  taking  charge  of  a  trust 
fund  while  he  himself  is  a  borrower  of  it.  Farwell  v.  Steen,  46  Vt. 
678. 

A  trustee  cannot  withhold  the  income  of  a  trust  fund  from  the 


312       PROCEEDINGS  IN  THE  PROBATE  COURTS- 

If  the  same  person  is  guardian  of  two  or  more  wards, 
although  they  may  be  equally  interested  in  the  property 
in  his  hands,  he  should  render  a  separate  account  of  his 
guardianship  of  each,  and  is  bound  to  account  whenever 
either  of  them  arrives  at  full  age. 

ALLOWANCE    OF   PROBATE   ACCOUNTS. 

The  executor  or  administrator  will  avoid  some  delay 
and  expense  if,  before  presenting  his  account  to  the  pro- 
bate court,  he  submits  it  to  the  heirs  or  other  parties 
interested,  and  obtains  their  assent  in  writing  to  its 
allowance.  Such  assent  may  be  conveniently  indorsed 
on  the  account.  If  they  do  not  so  express  their  assent, 
the  court,  before  proceeding  to  pass  upon  the  account,  will 
order  such  notice  to  be  given  to  them  as  the  circumstances 
of  the  case  require.  After  the  account  has  been  filed,  the 
judge,  before  approving  the  same,  may  appoint  one  or 
more  auditors  to  hear  the  parties  interested,  examine 
their  vouchers  and  the  evidence,  and  report  upon  the 
same,  which  report  shall  be  prima  facie  evidence  upon  such 
matters  as  are  expressly  referred  to  the  auditors.^ 

If  an  account  has  been  filed  in  the  probate  court  and  if 

beneficiary's  assignee  in  order  to  repay  to  himself  by  way  of  set-off 
money  lent  by  hira  to  the  beneficiary  prior  to  his  appointment  as 
trustee ;  nor  will  a  decree  of  the  probate  court  that  the  trustee  is  so 
entitled  be  good  in  the  absence  of  personal  notice  to  the  assignee  or 
the  beneficiary.  Abbott  v.  Foote,  146  ISIass.  333.  A  guardian  was  not 
allowed  a  charge  in  his  account  for  superintending  the  building  of  a 
stable  for  his  ward.     ]\Iay  v.  Skinner,  149  Mass.  375. 

A  decree  of  the  probate  court  showing  a  balance  due  from  a  guar- 
dian to  his  ward  upon  the  expiration  of  the  guardianship,  and  the 
refusal  of  the  guardiau  or  his  representative  to  pay  it  over  in  accord- 
ance with  such  decree,  creates  a  debt  in  favor  of  the  ward,  for  which 
he  may  sue  in  his  own  name.     Cobb  v.  Kempton,  154  Alass.  266. 

1  R.  L.  0.  165,  §  56. 


ACCOUNTS   OF   EXECUTORS,   ADMINISTRATORS,   ETC.      313 

the  court  finds  that  the  items  of  said  account  should  be 
finall}^  determined  and  adjudicated,  or  if  tlie  accountant 
after  two  years  from  a  former  adjudication  or  from  his 
appointment  desires  such  determination  and  adjudication, 
notice  of  such  proposed  action  shall  be  given  to  all  ])arties 
as  it  may  order.  If  the  interest  of  a  person  unborn,  un- 
ascertained, or  legally  incompetent  to  act  in  his  own  behalf, 
is  not  represented  except  by  the  accountant,  the  court  shall 
appoint  a  competent  and  disinterested  person  to  act  as 
guardian  ad  litem  or  next  friend  for  such  person,  and  to 
represent  his  interest  in  the  case.^  The  person  so  appointed 
shall  make  oath  to  perform  his  duty  faithfully  and  impar- 
tially, and  shall  be  entitled  to  such  reasonable  compensation 
for  his  services  as  the  court  may  allow. 

When  all  living  parties  who  are  interested  as  beneficiaries 
in  a  trust  created  by  will  proved  and  allowed  in  this  com- 
monwealth reside  out  of  the  commonwealth,  the  probate 
court  having  jurisdiction  of  the  trust  may,  on  application 
of  the  parties  in  interest,  or  of  the  executor,  administrator, 
or  trustee,  and  if  it  deems  it  just  and  expedient,  authorize 
the  executor,  administrator,  or  trustee  to  pay  over  the 
fund  to  a  trustee  appointed  by  the  proper  court  in  any 
other  state  or  country,  provided  all  the  cestuis  que  trustent 
who  are  living,  and  the  executor,  administrator,  or  trustee 
signify  their  consent,  and  the  court  is  satisfied  that  the 
laws  of  such  other  state  or  country  secure  the  due  perform- 
ance of  said  trust ;  and  upon  such  payment  shown  to  the 
satisfaction  of  said  probate  court,  the  executor,  adminis- 

1  R.  L.  c.  150,  §  22.  Abbott  v.  Bradstreet,  3  Allen,  587;  Collins 
V.  Collins,  140  Mass.  502.  The  decree  of  the  court  of  probate  allow- 
ing the  final  account  of  an  administrator  cannot  be  impeached  in  an 
action  at  law  against  the  administrator  for  services  rendered  the 
deceased.    Parcher  v.  Bussell,  11  Cash.  107. 


314       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

trator,  or  trustee  appointed  here  may  be  discharged  from 
further  responsibility  by  decree  of  said  court.^ 

When  there  are  contingent  interests  in  such  trust  fund, 
whether  the  persons  who  may  be  entitled  thereto  are  in 
being  or  not,  and  where  any  of  the  cestuis  que  trustent  are 
minors,  the  court,  before  making  an  order  or  decree  in  the 
premises,  shall  cause  such  interests  and  minors  to  be  prop- 
erly represented  by  guardians  ad  litem  or  otherwise  at  its 
discretion.2 

Any  person  interested  in  the  estate  may  appear  and 
object  to  the  allowance  of  the  account,  either  that  the 
administrator  or  other  trustee  has  not  charged  himself 
with  all  the  assets  of  the  estate,  or  that  he  has  credited 
himself  with  sums  that  ought  not  to  have  been  paid  from 
the  estate,  or  that  he  claims  a  larger  sum  for  compensation 
than  he  is  justly  entitled  to  receive,  or  because  of  any 
overcharge  or  omission  in  his  account.^  The  executor  or 
guardian  is  not  only  required  to  make  oath  to  the  correct- 
ness of  his  account,  but  to  answer  specifically  all  questions 
concerning  it.*  And  the  party  at  whose  instance  inter- 
rogatories have  been  proposed  to  him  touching  his  account, 
has  a  right  to  offer  evidence  to  disprove  his  answers.^ 

The  court,  upon  the  hearing,  may  order  the  accountant 
to  charge  himself  with  sums  not  included  in  his  account, 
if  it  appears  that  he  has  received  them  in  his  ofificial 
capacity,  and  may  disallow  any  of  the  items  with  which 

1  R.  L.  c.  150,  §  27.  2  Ibid.  §  28. 

*  If  the  administration,  in  a  particular  transaction,  has  not  been 
strictly  according  to  law,  the  administrator  cannot  be  charged  with 
mal-administration  in  respect  to  such  transaction  by  persons  at  whose 
request  he  acted  therein.     Poole  i'.  Munday,  103  Mass.  174. 

*  R.  L.  c.  1.50,  §  3;  Sigourney  v.  Wetherell,  6  Met.  553;  Wade  v. 
Lobdell,  4  Cush.  510;  Blake  v.  Pegram,  101  Mass.  592. 

'  Higbee  v.  Bacon,  8  Pick.  484. 


ACCOUNTS  OF  EXECUTORS,  ADMINISTRATORS,  ETC.   315 

he  credits  himself ;  and  the  decree  of  the  court  allowing 
the  account,  as  it  may  be  finally  adjusted,  is  conclusive, 
unless  appealed  from.^  The  supreme  court  will  not,  as 
a  court  of  chancery,  resettle  an  administration  account 
alleged  to  have  been  fraudulently  settled  in  the  probate 
court ;  2  nor  can  the  decree  of  the  probate  court,  duly 
allowing  the  final  account  of  an  administrator,  be  im- 
peached in  an  action  at  law  against  him  upon  a  claim 
against  the  deceased.^  The  person  aggrieved  by  the  decree 
can  take  his  objections  to  the  supreme  court  of  probate 
only  by  appeal.  If  the  proceedings  in  the  probate  court 
were  such  that  they  may  be  treated  as  a  nullity  on  account 
of  fraud,  the  administrator  may  be  cited  to  account 
anew. 

The  accounts  of  two  or  more  joint  executors,  adminis- 
trators, guardians,  or  trustees  may  be  allowed  by  the  pro- 

^  It  is  made  the  duty  of  the  treasurer  of  the  commonwealth  to 
bring  suit  for  the  recovery  of  all  legacy  and  succession  taxes  not  paid, 
when  tlie  judge  certifies  to  him  that  the  final  account  of  any  executor, 
administrator,  or  trustee  has  been  filed  in  the  court,  and  that  the  final 
settlement  of  the  estate  is  delayed  by  reason  of  the  non-payment  of 
such  tax.  And  the  judge  is  required  to  issue  the  certificate  upon  the 
application  of  any  heii-,  legatee,  or  person  at  interest.  The  time  for 
payment  of  the  legacy  tax  may  be  extended  by  the  probate  court 
whenever  the  circumstances  of  the  case  may  require.  R.  L.  c.  15, 
§  18.  See  also  St.  1902,  c.  473.  If  the  administrator  of  the  estate  of 
a  deceased  partner  in  a  firm  has  made  a  settlement  with  the  surviv- 
ing partners,  and  his  account,  including  the  amount  received  from 
such  settlement,  has  been  allowed  by  the  probate  court,  that  court 
has  no  jurisdiction  to  open  the  account,  upon  the  petition  of  the 
successor  of  such  administrator  to  which  the  surviving  partners 
only  are  made  respondents,  on  the  ground  that  the  settlement  was 
induced  by  the  fraud  of  the  surviving  partners.  Blake  v.  Ward,  137 
Mass.  91. 

2  Jennison  v.  Hapgood,  7  Pick.  1;  Sever  v.  Russell,  4  Cush.  513; 
Ammidown  v.  Kinsey,  144  Mass.  587. 

a  Parcher  v.  Bussell,  11  Cush.  107. 


316       PKOCEEDIXGS  IN  THE  PROBATE  COURTS. 

bate  court  upon  the  oath  of  one  of  them.^  The  oath  may 
be  administered  by  the  judge  or  register  in  or  out  of  court, 
or  by  a  justice  of  tlie  peace  ;  but  the  judge  may  require  the 
oath  to  be  taken  before  him  in  open  court.^ 

No  final  settlement  of  an  account  of  any  executor,  ad- 
ministrator, or  trustee  shall  be  allowed  unless  such  account 
shows,  and  the  judge  finds,  that  the  legacy  and  succession 
tax  has  been  paid.  A  proper  voucher  for  such  payment  is 
the  receipt  of  the  treasurer  of  the  commonwealth.^ 


WHEN   SETTLED  ACCOUNTS   MAY   BE   OPENED. 

When  an  account  of  an  executor,  administrator,  or 
trustee  is  settled  in  the  absence  of  a  person  adversely 
interested,  and  without  notice  to  him,  such  account  may 
be  opened  on  the  application  of  such  person  at  any  time 
within  six  months  after  the  settlement  thereof,  and  upon 
the  settlement  of  an  account  all  former  accounts  of  the 

1  R.  L.  c.  150,  §  18. 

2  R.  L.  c.  162,  §  37.  The  probate  court,  in  passing  upon  the  allow- 
ance of  the  account  of  a  trustee  under  a  will,  may  determine  whether 
a  trustee  has  accounted  to  the  parties  entitled  to  the  income  of  the 
trust  fund  for  the  whole  of  the  income.  New  England  Trust  Co.  v. 
Eaton,  liO  Mass.  532.  When  an  executor,  administrator,  guardian, 
or  trustee  has  paid  or  delivered  over  to  the  persons  entitled  thereto  the 
money  or  other  property  in  his  hands,  as  required  by  a  decree  of  a 
probate  court,  he  may  perpetuate  the  evidence  thereof  by  presenting 
to  said  court,  within  one  year  after  the  decree  is  made,  an  account  of 
such  payments  or  of  the  delivery  over  of  such  property  ;  which  ac- 
count being  proved  to  the  satisfaction  of  the  court,  and  verified  by 
the  oath  of  the  party,  shall  be  allowed  as  his  final  discharge,  and 
ordered  to  be  recorded.  Such  discharge  shall  forever  exonerate  the 
party  and  his  sureties  from  all  liability  under  such  decree,  unless  his 
account  is  impeached  for  fraud  or  manifest  error.     R.  L.  c.  150,  §  20. 

8  R.  L.  c.  15,  §  19.  But  where  there  has  been  or  shall  be  a  devise, 
descent  or  bequest,  to  collateral  relatives  or  strangers  to  the  blood, 
liable  to  collateral  inheritance  tax,  to  take  effect  in  possession  or  come 


ACCOUNTS    OF   EXECUTORS,   ADMINISTEATOKS,   ETC.      317 

same  accountant  may  be  so  far  opened  as  to  correct  a 
mistake  or  error  therein  ;  *  except  that  a  matter  in  dispute, 
which  has  been  previously  heard  and  determined  by  the 
court,  shall  not  without  leave  of  the  court  be  again  brought 
in  question  by  any  of  the  parties  to  such  dispute.^ 

To  avail  himself  of  the  exception  provided  by  the  above 
section,  the  administrator  should  take  care  that  any  matter 
heard  and  determined  should  be  so  stated  as  to  appear  in 
the  decree  of  the  court  allowing  his  account.  If  his 
account  is  disputed,  he  should  call  upon  the  party  object- 
ing to  specify  in  writing  the  items  to  which  he  objects. 
His  account   being   then   settled,   the   entire   proceedings 

into  actual  enjoyment  after  the  expiration  of  one  or  more  life  estates 
or  a  term  of  years,  the  tax  on  such  property  sliall  not  be  payable  nor 
interest  begin  to  run  thereon  until  the  person  or  persons  entitled  thereto 
shall  come  into  actual  possession  of  such  property,  and  the  tax  thereon 
shall  be  assessed  upon  the  value  of  the  property  at  the  time  when  the 
right  of  possession  accrues  to  the  person  entitled  thereto  as  aforesaid, 
and  such  person  or  persons  shall  pay  the  tax  upon  coming  into 
possession  of  such  property.  The  executor  or  administrator  of  the 
decedent's  estate  may  settle  his  account  in  the  probate  court  without 
being  liable  for  said  tax  ;  provided,  that  such  person  or  persons  may 
pay  the  tax  at  any  time  prior  to  their  coming  into  possession,  and  in 
such  cases  the  tax  shall  be  assessed  on  the  value  of  the  estate  at  the 
time  of  the  payment  of  the  tax,  after  deducting  the  value  of  the  life 
estate  or  estate  for  years;  and  provided  further,  that  the  tax  on  real 
estate  shall  remain  a  lien  on  the  real  estate  on  which  the  same  is 
chargeable,  until  it  is  paid.     St.  1902,  c.  473. 

1  Wiggin  V.  Swett,  6  Met.  194.  See  Blake  v.  Pegram,  101  Mass.  592; 
Gale  V.  Nickerson,  144  Mass.  415 ;  Dodd  v.  Winship,  144  Mass.  461. 

2  R.  L.  c.  150,  §  17.  A  former  account  may  be  opened,  although 
an  apjjeal  was  taken  from  its  allowance  in  the  probate  court,  and  deter- 
mined in  the  supreme  court  of  probate.  Blake  v.  Pegram,  109  Mass. 
541  ;  Bridge  v.  Bridge,  146  Mass.  377,  and  cases  cited. 

Former  accounts  may  be  opened,  although  the  persons  by  whom 
they  were  rendered  have  ceased  to  represent  the  estate.  Blake  v. 
Pegram,  109  Mass.  541. 

The  right  to  open  former  accounts  is  limited  to  accounts  rendered 


318       PROCEEDINGS  IN  THE  PEOBATE  COURTS. 

will  appear  upon  the  records  of  the  court,  and  no  doubt 
can  afterwards  arise  as  to  th^  particular  items  disputed 
and  determined.^  Even  then,  by  leave  gi  the  court,  the 
account  may  be  opened,  though  undoubt^ly  the  court 
would  be  cautious  in  exercising  sych  a  power  in  regard  to 
a  subject  once  controverted  and  once  judicially  settled.^ 
Where  an  account  has  been  settled  for  many  years,  the 
heirs  or  other  parties  con^cerned  acquiescing  in  the  settle- 
ment, it  will  not  be  opened  on  their  application  unless  good 
cause  is  shown  for  the  delay ;  but  the  administrator  or 
other  trust  officer  may  be  cited  at  any  time  to  account  for 
assets  not  included  in  his  settled  accounts.^ 

in  the  settlement  of  the  same  estate.  Granger  v.  Bassett,  98  Mass. 
462.  Such  acquiescence  and  delay  on  the  part  of  the  guardian  as 
would  bar  him  from  holding  the  executors  liable  for  selling  the 
assets  of  the  estate  for  less  than  their  value,  will  not  deprive  the 
minor  wards  of  their  right  to  have  the  accounts  of  the  executors 
opened  to  correct  any  errors  therein.  Ueuholm  v.  McKay,  148  Mass. 
434 ;  Tripp  v.  Gifford,  155  Mass.  108. 

Though  an  executor  has  resigned  or  has  been  removed,  he  must 
still  account  as  executor;  he  will  still  be  obliged  to  submit  to  an  ex- 
amination, and  to  answer  all  questions  in  relation  to  his  accounts. 
Newell  V.  West,  149  Mass.  528. 

1  Cummings  v.  Cummings,  123  Mass.  271;  Ibid.,  128  Mass.  532. 

2  Field  tJ.  Hitchcock,  14  Pick.  405;  Smith  v.  Button,  4  Sliepley, 
308  ;  Browne  v.  Doolittle,  151  Mass.  600,  and  cases  cited. 

*  An  administrator  settled  his  first  account  in  1818,  and  a  second 
account  in  1822  ;  but  in  1825,  on  the  petition  of  the  residuary  legatee, 
a  re-hearing  was  had  in  the  probate  court,  and  the  administrator  was 
ordered  to  credit  the  estate  with  an  additional  sum.  From  this  de- 
cree the  legatee  appealed,  on  the  ground  that  a  larger  sum  should  be 
credited,  but  failed  to  prosecute  the  appeal,  and  it  was  dismissed. 
The  legatee  thereupon  demanded  payment  of  the  administrator  of 
the  sum  so  ordered  to  be  credited,  and  upon  his  refusal  to  pay  brought 
an  action  against  him,  in  which  judgment  was  rendered,  in  1835,  in 
favor  of  the  administrator,  on  the  ground  that  the  decree  had  been 
vacated  by  the  appeal.  In  1836  the  legatee  filed  a  petition  in  the 
probate  court  for  a  second  re-hearing,  on  the  ground  that  the  account 


ACCOUNTS   OF   EXECUTORS,   ADMINISTRATORS,   ETC.      319 

had  been  settled  fraudulently,  but  the  petition  was  dismissed  by  that 
court  in  1837;  on  appeal,  it  was  ordered  that  unless  the  respondent 
should  pay  to  the  legatee  the  amount  he  had  been  ordered  to  credit 
the  estate  in  1825,., with  interest  from  the  time  of  the  demand  and 
costs,  the  prayer  df  the  petition  should  be  granted.  Davis  v.  Cowdin, 
20  Pick.  510;  Cummings  r.  Cummings,  128  Mass.  532;  Blake  v.  Ward, 
137  Mass.  94.     See  Bassett  v.  Granger,  103  Mass.  177. 

If  a  trustee  under  a  will,  through  inadvertence,  errs  in  stating,  in 
an  account  filed  by  him,  that  a  certjj^  sum  paid  to  a  cestui  que  trust 
was  part  of  the  income,  instead  of  a  part  of  the  principal  of  a  trust 
fund,  the  probate  court,  on  an  appeal  .to  the  supreme  court  of  pro- 
bate, may  grant  the  trustee  leave  to  reopen  the  account  and  correct 
the  error,  if  it  is  material.  Dodd  v.  Winship,  144  Mass.  461.  See 
Browne  v.  Doolittle,  151  Mass.  596  ;  Newell  v.  Peaslee,  151  Mass.  601. 

An  executor  who,  in  his  first  account,  erroneously  charges  himself 
•with  the  rents  of  real  estate  to  which  he  was  himself  entitled  as  resid- 
uary devisee,  is  not  estopped  from  showing  the  mistake  and  having 
it  corrected.     Brown  v.  Baron,  162  Mass.  56. 


CHAPTER  XVI. 

DESCENT   AND   DISTRIBUTION.  —  ADVANCEMENTS. 

Descent,  or  hereditary  succession,  is  the  title  wherehy 
a  person,  on  the  death  of  his  ancestor,  acquires  his  estate 
by  right  of  representation,  as  his  heir.^ 

DESCENT   OF  KEAL   ESTATE.  —  GENERAL   KULES. 

When  a  person  dies  seised  of  land,  tenements,  or  heredita- 
ments, or  of  any  right  thereto,  or  entitled  to  any  interest 
therein,  in  fee-simple  or  for  the  life  of  another,^  not  hav- 
ing lawfully  devised  the  same,  they  shall  descend,  subject 

1  The  status  of  any  person  with  the  inherent  capacity  of  succession 
or  inheritance,  is  to  be  ascertained  by  the  law  of  the  domicile  which 
creates  the  status.  Ross  v.  Ross,  129  Mass.  243  ;  Merrill  v.  Preston, 
135  Mass.  456 ;  Proctor  v.  Clark,  154  Mass.  45. 

2  This  description  of  the  real  estate  is  so  framed  as  to  include,  not 
only  lands  of  which  the  ancestor  was  actually  seised,  but  also  re- 
mainders and  reversions,  and  the  right  to  lands  of  which  he  had 
been  disseised  or  in  any  other  way  ousted.  Cora.  Rep.  1834,  note 
to  c.  61. 

Contingent  interests,  both  in  real  and  personal  estate,  are  trans- 
missible like  vested  interests.  Winslow  v.  Goodwin,  7  Met.  363  ;  Dal- 
ton  V.  Savage,  9  Met.  28  ;  Welsh  v.  Woodbury,  144  Mass.  545,  and 
cases  cited. 

Real  estate  held  by  an  executor  or  administrator  in  mortgage,  or 
on  execution  for  a  debt  due  to  tlie  deceased,  is  considered  personal 
assets  in  his  hands,  and  if  not  sold  by  him  or  redeemed  does  not 
descend  to  the  heirs  as  real  estate,  but  is  assigned  and  distributed  to 
the  same  persons  and  in  the  same  proportions  as  if  it  had  been  part  of 
the  personal  estate  of  the  deceased.     R.  L.  c.  150,  §  11. 


DESCENT   AND    DISTRIBUTION.  321 

to  his  debts  and  to  the  rights  of  the  husband  or  wife 
and  minor  cliildren  of  the  deceased  as  provided  in  cliap- 
ters  131,  132,  and  140  of  the  Revised  Laws,  in  manner 
following:  ^  — 

"  Firsts  In  equal  shares  to  his  children  and  to  the  issue  ^ 
of  any  deceased  child,  by  right  of  representation  ;  and  if 
there  is  no  surviving  child  of  the  intestate,  then  to  all  his 
other  lineal  descendants.  If  all  such  descendants  are  in 
the  same  degree  of  kindred  to  the  intestate,  they  shall  share 
the  estate  equally  ;  otherwise,  they  shall  take  according 
to  the  right  of  representation. 

"  Second,  If  he  leaves  no  issue,  then  in  equal  shares  to 
his  father  and  mother. 

"  Tliird,  If  he  leaves  no  issue  nor  mother,  then  to  his 
father. 

"  Fourth,  If  he  leaves  no  issue  nor  father,  then  to  his 
mother. 

"  Fifth,  If  he  leaves  no  issue  and  no  father  or  mother, 
then  to  his  brothers  and  sisters  and  to  the  issue  of  any 
deceased  brother  or  sister  by  right  of  representation ;  and 
if  there  is  no  surviving  brother  or  sister  of  the  intestate, 
then  to  all  the  issue  of  his  deceased  brothers  and  sisters. 
If  all  such  issue  are  in  the  same  degree  of  kindred  to  the 

1  R.  L.  c.  133,  §  7  ;  Dexter  v.  Inches,  147  Mass.  326 ;  Smith,  Peti- 
tioner, 156  Mass.  408. 

The  real  estate  of  an  intestate,  in  default  of  children  or  surviving 
brothers  or  sisters,  will  be  distributed  among  the  nearest  descendants 
or  issue  in  equal  degree  of  kindred  to  the  intestate  per  capita,  and  to 
those  in  more  remote  degree,  per  stirpes.  Balch  v.  Stone,  149  Mass. 
39.  If  an  illegitimate  intestate  leaves  no  relatives  except  a  brother 
and  sister  of  his  mother,  and  children  of  her  deceased  brothers,  his 
personal  estate  will  go  to  the  uncle  and  aunt,  to  the  exclusion  of  his 
cousins.     Parkman  v.  McCarthy,  149  Mass.  502. 

2  The  word  "  issue,"  as  applied  to  the  descent  of  estates,  includes 
all  the  lawful  lineal  descendants  of  the  ancestor.     R.  L.  c.  8,  §  5,  cl.  7. 

21 


322       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

intestate,  they  shall  share  the  estate  equally ;  otherwise, 
they  shall  take  according  to  the  right  of  representation.^ 

"  Sixths  If  he  leaves  no  issue,  and  no  father,  mother, 
brother,  or  sister,  and  no  issue  of  any  deceased  brother  or 
sister,  then  to  his  next  of  kin  in  equal  degree  ;  except 
that  when  there  are  two  or  more  collateral  kindred  in 
equal  degree,  but  claiming  through  different  ancestors, 
those  who  claim  through  the  nearest  ancestor  shall  be 
preferred  to  those  claiming  through  an  ancestor  who  is 
more  remote.^ 

"  Seventh,  If  an  intestate  leaves  no  kindred  and  no 
■widow  or  husband,  his  or  her  estate  shall  escheat  to  the 
commonwealth," 

The  degrees  of  kindred  are  computed  according  to 
the  rules  of  the  civil  law  ;  and  the  kindred  of  the  half 
blood  inherit  equally  with  those  of  the  whole  blood  in  the 
same  degree.^ 

RIGHTS  OF  A  SURVIVING  HUSBAND  IN  THE  PROPERTY  OF  HIS 
DECEASED  WIFE  AND  RIGHTS  OF  A  WIFE  IN  THE  PROPERTY 
OF    HER   DECEASED    HUSBAND. 

a.      Under  the  Public  Statutes. 

The  Revised  Laws  make  radical  changes  in  regard  to 
the  rights  of  a  surviving  husband  in  the  property  of  his 
deceased  wife  and  in  regard  to  the  rights  of  a  wife  in  the 

1  Conant  v.  Kent,  130  Mass.  178. 

2  Snow  V.  Snow,  111  Mass.  389;  Balch  v.  Stone,  149  Mass.  39. 

"  Next  of  kin,"  under  26  U.  S.  Sts.  at  Large,  pp.  862.  90S,  relating 
to  payment  of  Frencli  Spoliation  Claims,  are  not  to  be  determined  as 
of  the  time  of  the  testator's  death,  but  as  of  the  date  of  the  passage  of 
the  act.     Codman  v.  Brooks,  167  Mass.  499. 

8  Larrabee  v.  Tucker,  110  Mass.  562;  R.  L.  c.  133,  §  2. 

For  the  provisions  of  law  under  which  the  estates  of  persons  de- 
ceased prior  to  Oct.  1,  1876,  descend,  see  Gen.  Stats,  c.  91. 


DESCENT   AND    DISTRIBUTION    UNDEK   PUBLIC   STATUTES.      323 

property  of  her  deceased  husband.  Before  stating  the 
provisions  of  the  Revised  Laws  on  this  subject,  it  will  be 
well,  for  the  purpose  of  comparison  and  reference,  to  sum- 
marize those  provisions  of  the  Public  Statutes  in  which  the 
principal  changes  have  been  made. 

The  law  which  was  superseded  when  the  Revised  Laws 
took  effect  on  the  first  day  of  January,  1902,  provided  as 
follows :  — 

"  When  a  man  and  his  wife  are  seised  in  her  right,  and 
when  a  married  woman  is  seised  to  her  sole  and  separate 
use,  of  an  estate  of  inheritance  in  lands,  and  they  have 
had  issue  born  alive  which  might  have  inherited  such 
estate,  the  husband  shall  on  the  death  of  the  wife  hold  the 
lands  for  his  life  as  a  tenant  thereof  by  the  curtesy.  If 
they  have  had  no  such  issue,  he  shall  hold  one  half  of  such 
lands  for  his  life.  If  she  dies  and  leaves  no  issue  living, 
he  shall  take  her  real  estate  in  fee  to  an  amount  not 
exceeding  five  thousand  dollars  in  value,  and  shall  also 
have  an  estate  by  the  curtesy  or  other  life  interest,  as 
before  provided,  in  her  other  real  estate.  If  she  dies  intes- 
tate and  leaves  no  kindred,  he  shall  take  the  whole  of  her 
real  estate  in  fee.^  " 

1  P.  S.  c.  124,  §  I,  as  amended  by  St.  1885,  c.  255,  and  St.  1887, 
c.  290.  A  husband  is  entitled  to  his  curtesy  in  an  estate  tail  of  which 
his  wife  was  seised.     Goddard  v.  Whitney,  140  Mass.  101. 

By  a  will,  real  estate  was  given  to  four  children  for  life,  "  and 
when  they  shall  respectively  decease,  to  their  respective  heirs,"  etc. 
One  of  the  children  was  a  married  woman  who  died  intestate.  It  was 
held,  that  her  husband  was  her  heir,  and  not  her  three  brothers.  Lavery 
i;.  Egan,  143  Mass.  389.  See  also  Lincoln  v.  Perry,  149  Mass.  374  ; 
Brownell  v.  Briggs,  173  Mass.  531. 

A  married  woman  died  leaving  a  husband,  but  no  issue.  She  made 
a  will,  to  which  her  husband  did  not  assent,  by  which  she  gave  him  a 
pecuniary  legacy,  and  added  these  words :  "  Which  is  to  be  in  full  set- 
tlement of  all  his  demands  upon  my  estate,"  and  devised  the  rest  of 


324       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  Public  Statutes  as  amended  also  provided  that,  if  a 
married  woman  died  possessed  of  personal  property  not 
lawfully  disposed  of  by  will,  and  leaving  issue,  her  hus- 
band should  be  entitled,  after  payment  of  her  debts, 
funeral  expenses,  and  charges  of  administration,  to  one 
half  of  the  residue  ;  and  to  the  whole  of  such  residue  if 
she  left  no  issue.^ 

As  to  the  surviving  wife  the  Public  Statutes  provided, 
in  regard  to  real  estate  of  her  deceased  husband,  as 
follows:  — 

"  A  wife  shall  be  entitled  to  her  dower  at  common  law 
in  the  lands  of  her  deceased  husband.  When  her  husband 
dies  intestate  "  (and  when  he  dies  testate  and  she  waives 
the  provisions  of  his  will)  ^  "  and  leaves  no  issue  living, 

her  estate  to  others.  Held,  that  the  liusband  was  not  entitled,  under 
P.  S.  c.  124,  c.  1,  to  one  half  of  his  wife's  lands  for  his  life.  Burke  v. 
Colbert,  144  Mass.  160. 

P.  S.  c.  124,  §  3,  gave  to  a  husband  a  fee  in  his  wife's  lands  to  an 
amount  not  exceeding  five  thousand  dollars  in  value,  when  they  had 
had  no  children.     Howe  v.  Berry,  168  Mass.  418. 

1  P.  S.  c.  135,  §  3;  Goddard  y.  Whitney,  140  Mass.  101;  Constan- 
tinidesy.  Walsh,  146  Mass.  282;  Parkman  v.  McCarthy,  149  Mass.  504; 
Robinson  v.  Simmons,  1.50  Mass.  126. 

2  The  surplus  of  proceeds  of  land  sold  by  an  executor  or  adminis- 
trator, remaining  on  the  settlement  of  his  accounts,  is  considered  real 
estate,  and  is  disposed  of  to  the  same  persons  and  in  the  same  propor- 
tions as  the  land  would  descend  if  not  sold.     P.  S.  c.  142,  §  9. 

The  statute  extends  to  contingent  as  well  as  to  vested  interests. 
Dalton  i\  Savage,  9  Met.  37  ;  Welsh  v.  Woodbury,  144  Mass.  545,  and 
cases  cited. 

Where  a  will  does  not  dispose  of  the  whole  estate  of  a  testator, 
property  not  disposed  of  therein  passes  to  the  next  of  kin  and  heirs  at 
law  as  intestate  property.     Foster  v.  Smith,  1.56  Mass.  379. 

Cochran  v.  Thcrndike,  133  Mass.  46  ;  Mathews  v.  Mathews,  141 
Mass.  511. 

A  child  by  adoption  is  "  issue  "  within  the  meaning  of  P.  S.  c.  124, 
§  3.     Buckley  v.  Frasier,  153  Mass.  525. 


DESCENT   AND   DISTRIBUTION   UNDER   PUBLIC    STATUTES.      325 

she  shall  take  his  real  estate  in  fee  to  an  amount  not 
exceeding  five  thousand  dollars  in  value,  and  shall  also 
be  entitled  during  her  life  to  one-half  of  the  other  real 
estate  of  which  he  died  seized  ;  or,  if  she  files  her  election 
therefor  within  six  months  after  the  date  of  letters  of 
administration  on  his  estate,  she  may  have,  instcnd  of 
such  life  estate,  her  dower  in  his  real  estate  other  than 
that  taken  by  her  in  fee.  If  her  husband  dies  intestate 
and  leaves  no  kindred,  she  shall  take  the  whole  of  his  real 
estate  in  fee."  ^  A  wife  shall  also  be  entitled  to  remain  in 
the  house  of  her  husband  for  forty  days  after  his  death 
without  being  chargeable  with  rent. 

If  the  husband  died  possessed  of  personal  property  not 
lawfully  disposed  of  by  will,  and  leaving  issue,  the  widow 
was  entitled,  after  payment  of  any  allowances  to  her  and 
to  minor  children,  the  debts  of  the  deceased,  funeral  ex- 
penses, and  charges  of  administration,  to  one-third  of  the 
residue  ;  and,  if  the  husband  left  no  issue,  the  widow  was 
entitled  to  the  whole  of  the  residue  to  the  amount  of  five 
thousand  dollars  and  to  one-half  of  the  excess  of  the  resi- 
due above  ten  thousand  dollars  ;  and  if  the  husband  left  no 
kindred,  she  was  entitled  to  the  whole  of  the  residue.^ 

A  widow  could  waive  the  provisions  of  her  husband's 
will  and  she  would  then  be  entitled  to  dower  in  his  real 
estate  and  to  the  same  share  of  his  personal  property  as 
she  would  have  received  if  he  had  died  intestate,  except 

1  P.  S.  c.  124,  §  3  ;  Staigg  v.  Atkinson,  144  Mass.  .570;  Buttrick 
V.  Tilton,  155  Mass.  463. 

Although  the  husband  and  wife  have  separated  by  mutual  agree- 
ment, she  will  still  retain  her  riglit  to  share  in  his  estate  on  his  decease. 
Whitney  v.  Closson,  138  Mass.  49. 

A  husband  is  the  statutory  heir  of  his  wife.  La  very  v.  Egan,  143 
Mass.  389  ;  Lincoln  v.  Terry,  149  Mass.  368. 

2  P.  S.  c.  135,  §  3,  as  amended  by  St.  1885,  c.  276. 


326       rROCEEDINGS  IN  THE  PROBATE  COURTS. 

that,  if  she  would  thus  become  entitled  to  an  amount  ex- 
ceeding ten  thousand  dollars,  she  would  receive  only  the 
income  during  her  life  of  the  excess  above  ten  thousand 
dollars.^ 

Without  her  husband's  written  consent,  the  will  of  a 
married  woman  could  not  deprive  him  of  his  tenancy  by 
the  curtesy  in  her  real  estate,  or  of  the  right  to  the  use  for 
his  life  of  one-half  of  her  real  estate,  if  they  had  liad  no 
issue  born  alive,  or  of  more  than  one-half  of  her  personal 
property,  or  of  her  real  estate  not  exceeding  five  thousand 
dollars  in  value  when  no  issue  survived  her ;  except  that  a 
married  woman  deserted  by  her  husband  or  living  apart 
from  him  for  a  justifiable  cause,  when  the  fact  of  such 
desertion  or  living  apart  had  been  established  by  the  de- 
cree of  a  court  having  jurisdiction  of  the  parties,  could  by 
will  or  by  deed  dispose  of  her  real  estate  without  her 
husband's  consent.^ 

h.    Under  the  Revised  Laws. 

"  A  husband  shall,  upon  the  death  of  his  wife,  hold  one- 
third  of  her  land  for  his  life.  Such  estate  shall  be  known 
as  his  tenancy  by  curtesy,  and  the  provisions  of  law  ap- 
plicable to  dower  shall  be  applicable  to  curtesy.  A  wife 
shall,  upon  the  death  of  her  husband,  hold  her  dower  at 
common  law  in  her  deceased  husband's  land.  Such  estate 
shall  be  known  as  her  tenancy  by  dower.  But  in  order  to 
be  entitled  to  such  curtesy  or  dower  the  surviving  husband 
or  wife  shall  file  his  or  her  election  and  claim  therefor  in 
the  registry  of  probate  within  one  year  after  the  date  of 

1  P.  S.  c.  127,  §§  18,  19.  Staigg  v.  Atkinson,  144  Mass.  570; 
Dexter  v.  Codman,  148  Mass.  422;  Townsend  i'.  Townsend,  156  Mass. 
455. 

2  P  S.  c.  147,  §  6  ;  St.  1885,  c.  255  ;  St.  1887,  c.  290;  Johnson  v. 
Williams,  152  Mass.  414. 


DESCENT  AND  DISTRIBUTION  UNDER   THE    REVISED    LAWS,     327 

the  approval  of  the  bond  of  the  executor  or  administrator 
of  the  deceased,  and  shall  thereupon  hold  instead  of  the 
interest  in  real  property  given  in  section  three  of  chapter 
one  hundred  and  forty,  curtesy  or  dower,  respectively  ; 
otherwise  such  estate  shall  be  held  to  be  waived.  Such 
curtesy  and  dower  may  be  assigned  by  the  probate  court 
in  the  same  manner  as  dower  is  now  assigned,  and  the 
tenant  by  curtesy  or  dower  shall  be  entitled  to  the  pos- 
session and  profits  of  one  undivided  third  of  the  real 
estate  of  the  deceased  from  her  or  his  death  until  the 
assignment  of  curtesy  or  dower,  and  to  all  remedies  there- 
for which  the  heirs  of  the  deceased  have  in  the  residue  of 
the  estate.  Rights  of  curtesy  which  exist  when  this 
chapter  takes  effect  may  be  claimed  and  held  in  the  man- 
ner above  provided,  but  in  such  case  the  husband  shall 
take  no  other  interest  in  the  real  or  personal  property  of 
his  wife,  and,  except  as  preserved  herein,  curtesy  at  com- 
mon law  is  abolished."  ^ 

"  If  a  deed  of  land  is  made  to  a  married  woman,  who,  at 
the  time  of  its  execution,  mortgages  such  land  to  the 
grantor  to  secure  the  payment  of  the  whole  or  a  part  of  the 
purchase-money,  or  to  a  third  person  to  obtain  the  whole 
or  a  part  of  such  purchase-money,  her  seisin  shall  not 
give  her  husband  an  estate  by  the  curtesy  as  against  such 
mortgagee."  ^ 

*  R.  L.  c.  132,  §  1.  A  widow's  right  to  have  dower  assigned  to  her 
out  of  the  lands  of  her  deceased  husband,  cannot  be  attached  or  taken 
on  execution  in  an  action  at  law.      McMahon  v.  Gray,  150  Mass.  289. 

When  land  is  taken  by  right  of  eminent  domain,  the  wife  of  the 
person  whose  land  is  so  taken  is  not  entitled,  by  reason  of  her  inchoate 
right  of  dower,  to  liave  a  portion  of  the  proceeds  set  apart  by  a  court 
in  equity  for  lier  benefit  in  case  she  survives  her  husband.  Flynn  v. 
Flynn,  171  Mass.  312. 

2  R.  L.  c.  132,  §  2. 


328       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  A  widow  shall  not  be  entitled  to  dower  in  wild  land  of 
which  her  husband  dies  seised,  except  wood  lots  or  other 
land  used  with  his  farm  or  dwelling-house,  nor  in  such 
land  which  is  conveyed  by  him  although  it  is  afterward 
cleared."  ^ 

"If,  upon  a  mortgage  made  by  a  husband,  his  wife  has 
released  her  right  of  dower,  or  if  a  husband  is  seised  of 
land  subject  to  a  mortgage  which  is  valid  and  effectual  as 
against  his  wife,  she  shall  nevertheless  be  entitled  to  dower 
in  the  land  mortgaged  as  against  every  person  except  the 
mortgagee  and  those  claiming  under  him.  If  the  heir  or 
other  person  who  claims  under  the  husband  redeems  the 
mortgage,  the  widow  shall  either  repay  such  part  of  the 
money  which  was  paid  by  the  person  so  redeeming  as  shall 
be  equal  to  the  proportion  which  her  interest  in  the  land 
mortgaged  bears  to  the  whole  value  thereof,  or,  at  her 
election,  she  shall  be  entitled  to  dower  according  to  the 
value  of  the  estate  after  deducting  the  money  paid  for 
redemption."  ^ 

"  The  articles  of  apparel  and  the  ornaments  of  the 
widow  and  minor  children  of  a  deceased  person  shall 
belong  to  them  respectively.  The  widow  may  remain  in 
the  house  of  her  husband  for  not  more  than  six  months 
next  succeeding  his  death  without  being  chargeable  for 
rent."  ^ 

"  Such  parts  of  the  personal  property  of  a  deceased  per- 
son as  the  probate  court,  having  regard  to  all  the  circum- 
stances of  the  case,  may  allow  as  necessaries  to  his  widow 
for  herself  and  for  his  family  under  her  care  or,  if  there  is 

^  R.  L.  c.  132,  §  3.  A  widow  who  does  not  live  upon  the  dower 
estate  has  no  right  to  cut  the  wood  thereon  for  sale.  Noyes  v.  Stone, 
163  Mass.  490. 

2  R.  L.  c.  132,  §  4.  «  R.  L.  c.  140,  §  1. 


DESCENT  AND  DISTRIBUTION  UNDER  THE  REVISED  LAWS.      329 

no  widow,  to  his  minor  children,  not  exceeding  one  hundred 
dollars  to  any  child,  and  also  such  provisions  and  other 
articles  as  are  necessary  for  the  reasonable  sustenance  of 
his  family,  and  the  use  of  his  house  and  of  the  furniture 
therein,  for  six  months  next  succeeding  his  death,  shall 
not  be  taken  as  assets  for  the  payment  of  debts,  legacies, 
or  charges  of  administration.  After  exhausting  the  per- 
sonal property,  real  property  may  be  sold  to  provide  the 
amount  of  allowance  decreed,  in  the  same  manner  as  it  is 
sold  for, the  payment  of  debts,  if  a  decree  authorizing  such 
sale  is  made,  upon  the  petition  of  any  party  in  interest, 
within  two  years  after  the  approval  of  the  bond  of  the 
executor  or  administrator."  ^ 

"  If  a  person  dies  possessed  of  property  not  lawfully  dis- 
posed of  by  will,  it  shall  be  distributed  as  follows  :  — 

"  First,  The  personal  property  remaining  after  said  al- 
lowances shall  be  applied  to  the  payment  of  the  debts  of 
the  deceased  and  the  charges  of  his  last  sickness  and 
funeral  and  of  the  settlement  of  his  estate. 

"  Second,  The  residue  of  the  personal  property  shall  be 
distributed  among  the  persons  and  in  the  proportions  pre- 
scribed for  the  descent  of  real  property  in  chapter  one 
hundred  and  thirty-three,  except  as  otherwise  provided 
herein. 

"Third,  If  the  deceased  leaves  no  issue,  the  surviving 
husband  or  widow  shall  take  five  thousand  dollars  and 
one-half  of  the  remaining  personal  property  and  one-half 
of  the  remaining  real  property.  If  the  personal  property 
is  insufficient  to  pay  said  five  thousand  dollars,  the  de- 
ficiency shall,  upon  the  petition  of  any  party  in  interest,  be 
paid  from  the  sale  or  mortgage,  in  the  manner  provided  for 
the  payment  of  debts  or  legacies,  of  any  interest  of  the 
1  R.  L.  c.  140,  §  2.     See  page  177  et  seq.,  ante. 


330       PROCEEDINGS  IX  THE  PROBATE  COURTS. 

deceased  in  real  property  which  he  could  have  conveyed 
at  the  time  of  his  death. 

"  If  the  deceased  leaves  issue,  a  surviving  husband  or 
widow  shall  take  one-third  of  the  remaining  personal 
property  and  one-third  of  the  remaining  real  property. 

"  If  the  deceased  leaves  no  kindred,  a  surviving  husband 
or  widow  shall  take  the  whole  of  the  remaining  real  and 
personal  property. 

"  If  the  deceased  leaves  no  husband,  widow,  or  kindred, 
the  whole  of  the  remaining  personal  property  shall  escheat 
to  the  commonwealth."  ^ 

"  The  surviving  husband,  except  as  provided  in  section 
thirty-six  of  chapter  one  hundred  and  fifty -three"  (which 
authorizes  a  wife  deserted  by  her  husband  or  living  apart 
from  him  for  a  justifiable  cause  to  convey  her  real  property 
by  deed  or  will  without  his  consent),  "  or  the  widow  of  a 
deceased  person,  at  any  time  within  one  year  after  the  pro- 
bate of  the  will  of  such  deceased,  may  file  in  the  registry 
of  probate  a  writing  signed  by  him  or  by  her,  waiving  any 
provisions  that  may  have  been  made  in  it  for  him  or  for 

1  R.  L.  c.  140,  §  3  ;  Parkman  v.  McCarthy,  149  Mass.  504  ;  Robiuson 
V.  Simmons,  156  Mass.  126. 

The  surphis  of  proceeds  of  land  sold  by  an  executor  or  administrator, 
remainiilg  on  settlement  of  his  accounts,  is  considered  real  estate  and 
is  disposed  of  to  the  same  persons  and  in  the  same  proportions  as  the 
land  would  descend  if  not  sold.     R.  L.  c.  148,  §  9. 

The  statute  extends  to  contingent  as  well  as  to  vested  interests. 
Dalton  V.  Savage,  9  Met.  37  ;    Welsh  v.  Woodbury,  144  Mass.  545. 

Where  a  will  does  not  dispose  of  the  whole  estate  of  a  testator, 
property  not  disposed  of  therein  passes  to  the  next  of  kin  and  heirs  at 
law  as  intestate  property-     Foster  v.  Smith,  156  Mass.  379. 

Children  of  the  half  blood  inherit  equally  with  those  of  the  whole 
blood.  Larrabee  v.  Tucker,  116  Mass.  562.  An  adopted  child  who 
is  at  the  same  time  the  grandson  of  the  adopting  father  cannot  in 
herit  the  property  of  his  giandfather  in  a  twofold  capacity,  as  his  son 
and  as  his  grandson.     Delano  v.  Bruerton,  148  Mass.  619. 


DESCENT  AND  DISTRIBUTION  UNDER  THE  REVISED  LAWS.      331 

her,  or  claiming  such  portion  of  the  estate  of  the  deceased 
as  he  or  she  would  have  taken  if  tlie  deceased  had  died  in- 
testate, and  he  or  she  shall  thereupon  take  the  same  portion 
of  the  property  of  the  deceased,  real  and  personal,  that 
he  or  she  would  have  taken  if  the  deceased  had  died  intes- 
tate ;  except  that  if  he  or  she  would  thus  take  real  and 
personal  property  to  an  amount  exceeding  ten  thousand 
dollars  in  value,  he  or  she  shall  receive  in  addition  to  that 
amount  only  the  income  during  his  or  her  life  of  the  excess 
of  his  or  her  share  of  such  estate  above  that  amount,  the 
personal  property  to  be  held  in  trust  and  the  real  property 
vested  in  him  or  her  for  life,  from  the  death  of  the  de- 
ceased ;  and  except  that  if  the  deceased  leaves  no  kindred, 
he  or  she  upon  such  waiver  shall  take  the  interest  he  or 
she  would  have  taken  if  the  deceased  had  died  leaving 
kindred  but  no  issue.  If  the  real  and  personal  property 
of  the  deceased  which  the  surviving  husband  or  widow 
takes  under  the  foregoing  provisions  exceeds  ten  thou- 
sand dollars  in  value,  the  ten  thousand  dollars  above  given 
absolutely  shall  be  paid  out  of  that  part  of  the  personal 
property  in  which  the  husband  or  widow  is  interested  ;  and 
if  such  part  is  insufficient  the  deficiency  shall,  upon  the 
petition  of  any  person  interested,  be  paid  from  the  sale  or 
mortgage  in  fee,  in  the  manner  provided  for  the  payment 
of  debts  or  legacies,  of  that  part  of  the  real  property  in 
which  he  or  she  is  interested.  Such  sale  or  mortgage  may 
be  made  either  before  or  after  such  part  is  set  off  from  the 
other  real  property  of  the  deceased  for  the  life  of  the  hus- 
band or  widow. 

"  If,  after  probate  of  such  will,  legal  proceedings  have  been 
instituted  wherein  its  validity  or  effect  is  drawn  in  question, 
the  probate  court  may,  within  said  one  year,  on  petition  and 
after  such  notice  as  it  may  order,  extend  the  time  for  filing 


332       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  aforesaid  claim  and  waiver  until  the  expiration  of  six 
months  from  the  termination  of  such  legal  proceedings."  ^ 

"  No  surviving  husband  or  widow  of  a  deceased  person 
shall  make  claim  for  an  interest  in  the  estate  of  such  de- 
ceased or  begin  an  action  or  other  proceeding  for  the  recov- 
ery thereof,  unless  such  claim  or  action  is  made  or  begun 
within  twenty  years  after  the  decease  of  the  wife  or  hus- 
band, or  after  he  or  she  has  ceased  to  occupy,  or  to  receive 
the  profits  of,  his  or  her  share  of  such  real  estate,  ex- 
cept that  if  at  the  time  of  such  decease  the  surviving 
husband  or  widow  is  absent  from  the  commonwealth,  under 
twenty-one  years  of  age,  insane  or  imprisoned,  he  or  she 
may  make  such  claim  or  begin  such  action  or  proceeding  at 
any  time  within  twenty  years  after  such  disability  ceases."  ^ 

"  Lots  in  cemeteries  incorporated  under  the  provisions 

^  R.  L.  c.  135,  §  16.  A  widow  filed  her  waiver  and  died  before  the 
probate  of  her  husband's  will.  Held,  that  the  waiver  was  sufficient 
and  that  her  share  of  the  estate  passed  to  her  representatives.  Ather- 
ton  V.  Corliss,  101  Mass.  40. 

The  privilege  of  waiver  is  a  personal  right  which,  if  the  widow  is 
insane,  neither  she  nor  her  guardian  can  exercise.  Pinkerton  v.  Sar- 
gent, 102  Mass.  oG8.     But  see  R.  L.  c.  145,  §  33. 

The  income  of  the  excess  of  the  share  above  $10,000  is  to  be  com- 
puted from  the  time  of  the  death  of  the  testator.  Pollock  v.  Learned, 
102  Mass.  40  ;  Towle  v.  Swasey,  106  Mass.  106. 

For  a  case  in  which  a  widow  waived  the  provisions  of  her  husband's 
■will  and  the  meaning  of  the  word  "  family,"  used  in  the  will,  was  con- 
strued, see  Townsend  v.  Townsend,  156  Mass.  454. 

A  widow  who  has  waived  the  provisions  of  her  husband's  will  cannot 
avail  herself  of  a  provision  for  her  in  the  will  which  operates  as  an  ap- 
pointment of  property  under  a  trust  deed.  Fiske  *;.  Fiske,  173  Mass.  413. 

A  widow  who  has  not  waived  the  provisions  of  her  husband's  will, 
by  which  he  has  given  the  entire  estate  to  her,  is  not  entitled  to  dower 
in  land  which  in  his  lifptime  was  seised  on  an  execution  against  him 
and  set  off  to  his  creditors  in  full  satisfaction  of  the  judgment.  Barn- 
ard y.  Fall  River  Savings  Bank,  135  ]\Iass.  326. 

2  R.  L.  c.  132,  §  13 ;  O'Gara  v.  Neylon,  161  Mass.  140. 


DESCENT  AND  DISTRIBUTION  UNDER  THE  REVISED  LAWS.     333 

of  section  one  of  chapter  seventj-eiglit  of  the  Revised  Laws, 
tombs  in  public  cemeteries,  and  lots  and  tombs  in  public 
cemeteries  in  towns,  shall  be  held  indivisible,  and  upon  the 
decease  of  a  proprietor  of  such  lot  the  title  thereto  shall 
vest  in  his  heirs  at  law  or  devisees  subject  to  the  follow- 
ing limitations  and  conditions  :  If  he  leaves  a  widow  and 
children,  they  shall  have  the  possession,  care,  and  control 
of  said  lot  or  tomb  in  common  during  her  life.  If  he 
leaves  a  widow  and  no  children,  she  shall  have  such 
possession,  care,  and  control  during  her  life.  If  he 
leaves  children  and  no  widow,  they  shall  have  in  common 
the  possession,  care,  and  control  of  such  lots  or  tombs 
during  their  joint  lives,  and  the  survivor  of  tliem  during 
his  life.  The  persons  in  possession,  care,  and  control  of 
such  lots  or  tombs  may  erect  a  monument  and  make  other 
permanent  improvements  thereon.  The  widow  shall  have 
a  right  of  permanent  interment  for  her  own  body  in  such 
lot  or  tomb,  but  it  may  be  removed  therefrom  to  some 
other  family  lot  or  tomb  with  the  consent  of  her  heirs.  If 
two  or  more  persons  are  entitled  to  the  possession,  care, 
and  control  of  such  lot  or  tomb,  they  shall  designate  in 
writing  to  the  clerk  of  the  corporation,  or,  if  it  is  a  tomb  or 
lot  in  a  public  cemetery,  to  the  board  of  cemetery  com- 
missioners, if  any,  or  to  the  city  or  town  clerk,  which  of 
their  number  shall  represent  the  lot;  and,  in  default  of 
such  designation,  the  board  of  trustees  or  directors  of  the 
corporation,  the  board  of  cemetery  commissioners,  if  any, 
or  the  board  of  health  if  such  lots  or  tombs  are  in  public 
cemeteries  in  cities  or  towns,  shall  enter  of  record  which 
of  said  persons  shall  represent  the  lot  during  such  default. 
The  widow  may  at  any  time  release  her  right  in  such  lot, 
but  no  conveyance  or  devise  by  any  other  person  shall  de- 
prive her  of  such  right." 


334:       TKOCEEDINGS  IN  THE  PHOBATE  COURTS. 

"  Before  entering  of  record  the  name  of  any  person  to 
represent  such  lot  or  tomb,  the  board  of  cemetery  com- 
missioners, if  any,  or  the  board  of  health  of  a  town,  shall 
hear  the  parties  entitled  to  the  control  thereof  at  such 
time  and  place  as  it  shall  have  previously  appointed  by 
a  notice  published  in  a  newspaper,  if  any,  of  the  town  ; 
otherwise,  by  posting  a  copy  in  a  public  place  therein." 

"  A  wife  shall  be  entitled  to  a  right  of  interment  for  lier 
own  body  in  any  burial  lot  or  tomb  of  which  her  husband 
was  seised  during  coverture,  which  right  shall  be  exempt 
from  the  operation  of  the  laws  regulating  conveyance, 
descent,  and  devise,  but  which  may  be  released  by  her  in 
the  same  manner  as  dower." 

"  A  husband  shall  have  the  same  rights  in  the  tomb  or 
burial  lot  of  his  wife  as  a  wife  has  in  that  of  her  husband, 
and  may  assert  or  release  the  same  in  the  same  manner  as 
she  may  assert  or  release  her  rights."^ 

SUMMARY  OF  CHANGES  MADE  BY  THE  REVISED  LAWS  AS  TO 
THE  RIGHTS  OF  A  SURVIVING  HUSBAND  IN  THE  PROPERTY 
OF  HIS  DECEASED  WIFE  AND  AS  TO  THE  RIGHTS  OF  A 
WIFE   IN   THE   PROPERTY   OF   HER   DECEASED    HUSBAND. 

a.    As  to  the  Surviving  Husband. 

Curtesy  at  common  law  is  abolished,  and,  in  place  of  it, 
the  husband  may,  upon  the  death  of  his  wife,  hold  one- 
third  of  her  land  for  his  life,  provided  he  files  his  election 
and  claim  therefor  in  the  registry  of  probate  within  one 
year  after  the  date  of  the  approval  of  the  bond  of  the  ex- 
ecutor or  administrator  of  his  wife.  This  estate  is  termed 
his  tenancy  by  curtesy.  If  he  does  not  file  such  an  elec- 
tion and  claim  for  curtesy,  then  under  the  provisions  ot 

1  R.  L.  c.  78,  §§  26-29  inclusive. 


DESCENT  AND  DISTKIBUTION  UNDER  THE  REVISED  LAWS.     335 

section  three  of  chapter  one  hundred  and  forty  of  the 
Revised  Laws,  if  his  wife  dies  intestate  and  leaves  no  issue, 
the  surviving  husband,  after  payment  of  debts  of  the  wife 
and  the  charges  of  her  last  sickness  and  funeral  and  of  the 
settlement  of  her  estate,  is  entitled  to  five  thousand  dollars 
and  one-half  of  the  remaining  personal  property  and  one- 
half  of  the  remaining  real  property,  in  fee  ;  and  if  the 
personal  property  is  insufficient  to  pay  the  five  thousand 
dollars,  the  deficiency  is  to  be  paid  from  the  Sale  or  mort- 
gage, in  the  manner  provided  for  the  payment  of  debts  or 
legacies,  of  any  interest  of  the  deceased  wife  in  real  property 
which  she  could  have  conveyed  at  the  time  of  her  death. 
If  the  deceased  wife  dies  intestate  and  leaves  issue,  the  sur- 
viving husband  takes  one-third  of  the  personal  property 
remaining  after  the  payments  of  debts,  etc.,  and  one-third 
of  the  remaining  real  property. 

If  the  wife  leaves  a  will,  the  surviving  husband,  at  any 
time  within  one  year  after  the  probate  of  the  will,  may  file 
in  the  registry  of  probate  a  writing  signed  by  him  waiving 
any  provisions  that  may  have  been  made  in  the  will  for 
him,  or  claiming  such  portion  of  the  estate  of  his  wife  as 
he  would  have  taken  if  she  had  died  intestate,  and  he  will 
thereupon  take  the  same  share  of  her  property,  real  and 
personal,  that  he  would  have  taken  if  she  had  died  intestate  ; 
except  that  if  he  would  thus  take  real  and  personal  prop- 
erty to  an  amount  exceeding  ten  thousand  dollars  in  value 
he  will  receive  only  the  income  during  his  life  of  the  excess 
above  ten  thousand  dollars,  the  personal  property  to  be 
held  in  trust  and  the  real  property  to  be  vested  in 
him  for  life,  from  the  death  of  the  wife ;  and  except 
that  if  the  wife  leaves  no  kindred  he  will  take,  upon  such 
waiver,  the  interest  he  would  have  taken  if  she  had  died 
leaving  kindred  but  no  issue.     If  the    real    and   personal 


336       PUOCEEDINGS  IN  THE  PROBATE  COURTS. 

propert)'  of  the  wife  which  the  surviving  husband  would 
take,  upon  such  waiver,  exceeds  ten  thousand  dollars  in 
value,  the  ten  thousand  dollars  given  absolutely  is  to  be 
paid  out  of  the  personal  property  in  which  the  husband  is 
interested,  and  if  such  part  is  insufficient  the  deficiency  is 
to  be  paid  from  the  sale  or  mortgage  of  that  part  of  the 
real  property  in  which  the  husband  is  interested. 

h.  As  to  the  Surviving  Wife. 
The  surviving  wife  is  entitled  to  dower  at  common  law 
in  the  real  property  of  her  husband,  provided  she  files  her 
election  and  claim  therefor  in  the  registry  of  probate  within 
one  year  after  the  date  of  the  approval  of  the  bond  of  the 
executor  or  administrator  of  her  husband.  If  she  does  not 
file  such  election  and  claim,  and  if  her  husband  dies  intestate, 
the  surviving  wife,  after  the  payment  of  such  allowance  as 
may  be  made  by  the  probate  court  to  her,  including  such 
provisions  and  other  articles  as  are  necessary  for  the  rea- 
sonable sustenance  of  the  family  of  the  husband  and  the 
use  of  his  house  and  of  the  furniture  therein  for  six  months 
next  succeeding  his  death,  and  after  payment  of  his  debts, 
and  the  charges  of  his  last  sickness  and  funeral  and  of  the 
settlement  of  his  estate,  is  entitled  to  five  thousand  dollars 
and  one-half  of  the  remaining  personal  property  and  to  one- 
half  of  the  remaining  real  property,  if  her  husband  leaves 
no  issue  ;  and  to  one-third  of  the  remaining  personal  prop- 
erty and  one-third  of  the  remaining  real  property,  if  he 
leaves  issue.  If  the  personal  property  is  insufficient  to  pay 
said  five  thousand  dollars,  the  deficiency  shall  be  paid  from 
the  sale  or  mortgage,  in  the  manner  provided  for  the  pay- 
ments or  debts  or  legacies,  of  any  interest  of  the  husband 
in  real  property  which  he  could  have  conveyed  at  the  time 
of  his  death. 


DESCENT  AND  DISTKIBUTION  UNDER  THE  REVISED  LAWS.     337 

The  surviving  wife  can  waive  the  provisions  of  her  hus- 
band's will  in  the  same  manner  and  with  the  same  effect, 
in  all  respects,  as  above  stated  in  regard  to  the  waiver 
by  a  surviving  husband  of  the  provisions  of  the  will  of  his 
deceased  wife. 

From  this  brief  summary  it  will  be  seen  that  husband 
and  wife  are  placed  on  an  equality  by  the  Revised  Laws, 
excepting  that  certain  allowances  may  be  made  to  her  by 
the  probate  court  for  the  temporary  support  of  herself  and 
her  children  and  that  she  is  given  the  use  of  her  husband's 
house  and  of  the  furniture  therein  for  six  months  next 
succeeding  his  death,  free  of  charge  for  rent.  For  nearly 
seven  hundred  years  prior  to  the  date  when  the  Revised 
Laws  took  effect,  a  widow  had  been  entitled  to  the  use 
of  her  husband's  house  free  of  rent  for  a  period  of  forty 
days.  This  is  now  extended  to  six  months.  The  dower 
rio-ht  must  now  be  claimed,  even  when  the  husband  dies 
intestate,  and  the  right  of  dower  is  superior  to  the  claims 
of  creditors,  except  where  it  has  been  released.  If  dower 
is  not  claimed,  the  widow,  if  her  husband  dies  intestate 
and  without  issue,  is  entitled  to  property  to  the  value  of 
five  thousand  dollars  and  to  one-half  of  the  remaining 
personal  property,  and  one-half  of  the  remaining  real 
property,  absolutely ;  and  if  the  personal  property  is  not 
sufficient  to  pay  the  five  thousand  dollars,  real  estate  may 
be  sold  or  mortgaged  to  make  up  any  deficiency ;  and  if 
there  are  issue,  the  widow  takes  absolutely  one-third  of 
the  personal  property  and  one-third  of  the  real  property. 
This  distribution  is  after  payment  of  the  debts,  etc.  ;  but, 
in  place  of  the  use  and  income  for  life  of  one-third  of  the 
real  estate,  the  widow  is  given  one-third  of  the  remaining 
real  estate  absolutely.  If  the  personal  property  does  not 
amount  to  five  thousand  dollars  in  value,  after  payment  of 

22 


338       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  debts  and  charges,  the  deficiency  is  made  up  by  the 
sale  or  mortgage  of  real  estate,  where  there  are  no  issue, 
and  in  many  cases  this  would  be  greatly  for  the  advantage 
of  the  widow. 

The  practical  result  of  the  changes  made  by  the  Re- 
vised Laws  is  that  a  widow  whose  husband  dies  intestate 
and  leaves  issue  takes  absolutely  one-third  of  all  of  her 
husband's  property,  after  the  payment  of  his  debts  and 
the  charges  of  administration,  and,  if  the  husband  does 
not  leave  issue,  the  widow  will  receive,  after  the  pay- 
ment of  debts  and  charges  of  administration,  five  thou- 
sand dollars  and  one-half  of  all  of  the  remaining  property, 
both  real  and  personal,  and  this  she  will  hold  absolutely. 
The  Revised  Laws  also  provide  that  real  estate  may  be 
sold  for  the  purpose  of  paying  any  allowance  made  to 
the  widow  by  the  probate  court.  Under  the  former  law  the 
allowance  could  only  be  made  out  of  the  personal  property. 

Notwithstanding  the  very  liberal  provisions  of  the  Re- 
vised Laws,  if  the  husband  left  much  real  estate  and  was 
heavily  in  debt  it  might  be  advisable  for  the  widow  to 
claim  her  dower. 

HOMESTEAD    ESTATES   OF   WIDOWS    AND   MINOR    CHILDREN. 

The  estate  of  homestead  existing  at  the  death  of  a  house- 
holder continues  for  the  benefit  of  his  widow  and  minor 
children,  and  shall  be  held  and  enjoyed  by  them,  if  one  of 
them  or  a  purchaser  under  the  provisions  of  section  ten  of 
chapter  131  of  the  Revised  Laws  occupies  the  premises, 
until  the  youngest  child  is  twenty-one  years  of  age,  and 
until  the  marriage  or  death  of  the  widow.  But  all  the 
right,  title,  and  interest  of  the  deceased  in  the  premises  in 
which  such  estate  exists,  except  the  estate  of  liomestead 
thus  continued,  is  subject  to  the  laws  relating  to  devise, 


DESCENT  AND  DISTRIBUTION  UNDER  THE  REVISED  LAWS.      339 

descent,  dower,  and  sale  for  the  payment  of  debts  and 
legacies.^ 

"  The  real  and  personal  property  of  a  woman  shall  upon 
her  marriage  remain  her  separate  property,  and  a  married 
woman  may  receive,  receipt  for,  hold,  manage,  and  dispose 
of  property,  real  and  personal,  in  the  same  manner  as  if 
she  were  sole.  But  no  conveyance  by  a  married  woman 
of  real  property  shall,  except,  as  provided  in  section  thii-ty- 
six "  [of  chapter  153  of  Revised  Laws,  which  section 
authorizes  a  married  woman  who  has  been  deserted  by  her 
husband  or  is  living  apart  from  him  for  justifiable  cause  to 
convey  her  real  property  as  if  she  were  sole],  "  extinguish 
or  impair  her  husband's  tenancy  by  the  curtesy  by  statute 
or  his  rights  to  curtesy  when  this  chapter  "  [chapter  153] 
"  takes  effect  in  such  property  unless  he  joins  in  the 
conveyance  or  otherwise  releases  his  said  rights."  ^ 

If  a  deed  of  land  is  made  to  a  married  woman,  who 
at  the  time  of  its  execution  mortgages  such  land  to  the 
grantor  to  secure  the  payment  of  the  whole  or  a  part  of 
the  purchase-money,  or  to  a  third  party  to  obtain  tlie  whole 
or  a  part  of  such  purchase-money,  her  seisin  shall  not  give 
her  husband  an  estate  by  the  curtesy  as  against  such 
mortgagee.^ 

If  a  widow  is  entitled  by  the  provisions  of  law,  by  deed 
of  jointure,  or  under  the  will  of  her  husband,  to  an  undi- 
vided interest  in  his  real  estate  either  for  life  or  during 
widowhood,  and  her  right  is  not  disputed  by  his  heirs  or 
devisees,  such  interest  may  be  assigned  to  her,  in  what- 
ever counties  the  lands  lie,  by  the  probate  court  for  the 

^  R.  L.  c.  131,  §  8.  An  estate  of  homestead  cannot  be  affected  by 
the  will  of  the  householder.  Brettun  v.  Fox,  100  Mass.  2:U.  The 
right  depends  upon  occupancy.     Paul  v.  Paul,  136  Mass.  286. 

2  R.  L.  c.  153,  §  1  ;  Ago  v.  Conner,  167  Mass.  390. 

8  R.  L.  c.  132,  §  2. 


340       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

county  in  which  the  estate  of  her  husband  is  settled. 
Such  assignment  may  be  made  upon  her  petition,  or,  if  she 
does  not  petition  therefor  within  one  year  from  the  decease 
of  her  husband,  upon  petition  by  an  heir  or  devisee  of  her 
husband,  by  any  person  having  an  estate  in  the  land  sub- 
ject to  such  interest,  or  by  the  guardian  of  any  such  heir, 
devisee,  or  person.^ 

Upon  such  petition  the  court  shall  issue  a  warrant  to 
three  discreet  and  disinterested  persons,  who  shall  be 
sworn  to  perform  their  duty  faithfully  and  impartially 
according  to  their  best  skill  and  judgment,  and  who  shall 
set  off  the  widow's  interest  by  metes  and  bounds  if  it  can 
be  so  done  without  damage  to  the  whole  estate.  But 
if  the  estate  out  of  which  a  widow's  interest  is  to  be 
assigned  consists  of  a  mill  or  other  tenement  which  cannot 
be  divided  without  damage  to  the  whole,  such  interest  may 
be  assigned  out  of  the  rents  or  profits  thereof,  to  be  held 
and  received  by  the  widow  as  a  tenant  in  common  with  the 
other  owners  of  the  estate .^ 

ESTATES   OP   DECEASED   NON-RESIDENTS. 

"  If  administration  is  taken  in  this  commonwealth  on 
the  estate  of  a  person  who  was  an  inhabitant  of  any  other 
state  or  country,  his  estate  found  here  shall,  after  pay- 
ment of  his  debts,  be  disposed  of  according  to  his  last 
will,  if  he  left  any  duly  executed  according  to  law ;  other- 
wise, his  real  estate  shall  descend  according  to  the  laws 
of  this  commonwealth,  and  his  personal  property  shall  be 
distributed  and  disposed  of  according  to  the  laws  of  the 
state  or  country  of  which  he  was  an  inhabitant."  ^ 

1  R.  L.  c.  132,  §  9.  2  Ibid.  §  10. 

»  R.  L.  c.  143,  §  1  ;  Welch  v.  Adams,  152  Mass.  76  ;  Cowdea  v. 
Jacobson,  165  Mass.  240. 


SETTLEMENT   OF   ESTATES   OF   ABSENTEES.  341 

AS   TO    ILLEGITIMATE    CHILDREN. 

An  illegitimate  child  is  the  heir  of  his  mother  and  of  any 
maternal  ancestor,  and  the  lawful  issue  of  an  illegitimate 
person  takes  by  descent  any  estate  which  such  person 
would  have  taken  if  living. 

If  an  illegitimate  child  dies  intestate  and  without  issue, 
who  may  lawfully  inherit  his  estate,  his  estate  descends  to 
his  mother,  or,  in  case  she  is  not  living,  to  the  persons  who 
would  have  been  entitled  thereto  by  inheritance  through 
his  mother  if  he  had  been  a  legitimate  child. 

An  illegitimate  child  whose  parents  have  intermarried, 
and  whose  father  has  acknowledged  him  as  his  child,  is 
deemed  legitimate.^ 

SETTLEMENT   OF   ESTATES  OP  ABSENTEES. 

"  If  a  resident  of  the  commonwealth  having  property 
therein  has  disappeared,  absconded,  or  is  absent  therefrom 
and  has  left  no  agent  therein  and  his  whereabouts  are  un- 
known ;  or  if  such  lesident,  who  has  a  wife  or  minor  child 
dependent  upon  him  wholly  or  partly  for  support,  has  dis- 
appeared without  making  suflicient  provision  for  such 
support  and  his  whereabouts  are  unknown,  or  if  it  is 
known  that  they  are  without  the  commonwealth  ;    or  if 

1  R.  L.  c.  133,  §§  3,  4,  5 ;  Parkman  v.  McCarthy,  149  Mass.  502. 

A  bastard  and  his  issue  cannot  inherit  from  his  mother's  collateral 
kindred.  Pratt  v.  Atwood,  108  Mass.  40  ;  Haraden  v.  Larrabee,  113 
Mass.  430. 

In  Hayden  v.  Barrett,  172  Mass.  472,  it  was  held  that  an  illegitimate 
child  was  the  "  heir  by  blood  "  of  his  mother  within  the  meaning  of  a 
will  construed  in  that  case. 

Pub.  St8.  c.  125,  §  4,  and  St.  1882,  c.  132  (now  embodied  in  R.  L. 
c  133,  §  4),  do  not  apply  to  the  distribution  of  the  estate  of  a  child  of 
an  illegitimate  child  theretofore  deceased.  Sanford  v.  Marsh,  180 
Mass.  210. 


342       PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

abandoned  property  of  a  person  who  is  not  a  resident  of 
the  commonwealth  is  found  therein  and  no  agent  therein 
is  authorized  to  take  care  thereof,  a  person  who  would  be 
entitled  to  administer  upon  the  estate  of  such  resident  if 
he  were  dead,  or  such  wife,  or  a  person  in  behalf  of  such 
wife  or  minor  child,  or  if  abandoned  property  belongs  to 
such  non-resident  any  suitable  person,  may  file  a  petition, 
under  oath,  in  the  probate  court  for  the  county  in  which 
any  such  property  is  located  or  found,  stating  the  name, 
age,  occupation,  and  last  known  residence  or  address  of 
such  absentee  or  of  such  non-resident,  the  date  and  cir- 
cumstances of  the  disappearance  and  the  names  and 
residence  of  the  family  of  such  absentee  and  of  other 
persons  of  whom  inquiry  may  be  made,  and  containing  a 
schedule  of  his  property,  real  and  personal,  so  far  as 
known,  and  its  location  within  the  commonwealth,  and 
praying  that  such  property  may  be  taken  possession  of 
and  a  receiver  thereof  appointed  under  the  provisions  of 
this  chapter." 

"  The  court  may  thereupon  issue  a  warrant  directed  to 
the  sheriff  or  his  deputy,  which  may  run  into  and  be  served 
in  any  county,  commanding  him  to  take  possession  of  the 
property  named  in  said  schedule,  and  hold  the  same  sub- 
ject to  the  order  of  the  court,  and  make  return  of  said 
warrant  as  soon  as  may  be  with  his  doings  thereon  with  a 
schedule  of  the  property  taken  possession  of  by  virtue 
thereof.  The  officer  shall  post  a  copy  of  the  warrant 
upon  each  parcel  of  land  named  in  the  schedule  and  cause 
so  much  of  the  warrant  as  relates  to  land  to  be  recorded 
in  the  registry  of  deeds  for  the  county  and  district  in 
which  the  land  is  located.  He  shall  receive  such  fees  for 
serving  the  warrant  as  the  court  allows,  but  not  more  than 
those  established  by  law  for  similar  service  upon  a  writ  of 


SETTLEMENT   OF   ESTATES    OF   ABSENTEES.  343 

attacliment.  If  the  petition  is  dismissed,  said  fees  and  the 
cost  of  publishing  and  serving  the  notice  hereinafter  pro- 
vided shall  be  paid  by  the  petitioner.  If  a  receiver  is  ap- 
pointed said  fees  and  cost  shall  be  paid  by  the  receiver 
and  allowed  in  his  account." 

"  Upon  the  return  of  such  warrant,  the  court  may  issue 
a  notice  which  shall  recite  the  substance  of  the  petition, 
warrant,  and  officer's  return,  and  shall  be  addressed  to  such 
absentee  or  non-resident  and  to  all  persons  who  claim  an 
interest  in  said  property,  and  to  all  whom  it  may  con- 
cern, citing  them  to  appear  at  a  time  and  place  named 
and  show  cause  why  a  receiver  of  the  property  named 
in  the  officer's  schedule  should  not  be  appointed  and  said 
property  held  and  disposed  of  under  the  provisions  of  this 
chapter." 

"  The  return  of  said  notice  shall  be  not  less  than  thirty 
nor  more  than  sixty  days  after  its  date.  The  court  shall 
order  said  notice  to  be  published  in  one  or  more  news- 
papers within  the  commonwealth,  once  in  each  of  three 
successive  weeks,  and  to  be  posted  in  two  or  more  con- 
spicuous places  in  the  city  or  town  in  which  the  absentee 
last  resided  or  was  known  to  have  been  either  temporarily 
or  permanently,  and  upon  each  parcel  of  land  named  in  the 
officer's  schedule,  and  a  copy  to  be  mailed  to  the  last 
known  address  of  such  absentee  or  non-resident.  The 
court  may  order  other  and  further  notice  to  be  given 
within  or  without  the  commonwealth." 

"  The  absentee  or  non-resident  and  any  person  who 
claims  an  interest  in  any  of  the  property  may  appear 
and  show  cause  why  the  prayer  of  the  petition  should 
not  be  granted.  The  court  may  after  hearing  dismiss 
the  petition  and  order  the  property  in  possession  of  the 
officer  to  be  returned  to  the  person  entitled   thereto,  or 


344       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

it  may  appoint  a  receiver  of  the  property  which  is  in 
the  possession  of  the  officer  and  named  in  his  schedule. 
If  a  receiver  is  appointed  the  court  shall  find  and  record 
the  date  of  the  disappearance  or  ahsconding  of  the  ab- 
sentee ;  and  such  receiver  shall  give  bond  to  the  judge 
of  probate  and  his  successors  in  office  in  such  sum  and 
with  such  condition  as  the  court  orders,  with  a  company 
named  in  section  sixty-one  of  chapter  one  hundred  and 
eighteen  and  approved  by  the  court  as  surety  thereon," 

"  After  the  filing  and  approval  of  such  bond  the  court 
may  order  the  sheriff  or  his  deputy  to  transfer  and  deliver 
to  such  receiver  the  possession  of  the  property  under  the 
aforesaid  warrant,  and  the  receiver  shall  file  in  the  reg- 
istry of  probate  a  schedule  of  the  property  received  by 
him." 

"  Such  receiver  upon  petition  filed  by  him  may  be 
authorized  and  directed  to  take  possession  of  any  addi- 
tional property  within  the  commonwealth  which  belongs 
to  such  absentee,  or  of  any  additional  abandoned  property 
which  belongs  to  such  non-resident,  and  to  demand  and 
collect  all  debts  due  such  absentee  from  any  person  within 
the  commonwealth,  and  hold  the  same  as  if  it  had  been 
transferred  and  delivered  to  him  by  the  officer." 

"  The  court  may  make  orders  for  the  care,  custody, 
leasing,  and  investing  of  said  property  and  its  proceeds. 
If  any  of  said  property  consists  of  live  animals  or  is  perish- 
able or  cannot  be  kept  without  great  or  disproportionate 
expense,  the  court  may,  at  any  time  after  the  return  of  the 
warrant,  order  such  property  to  be  sold  at  public  or  private 
sale.  After  the  appointment  of  a  receiver,  upon  his  pe- 
tition and  after  notice,  the  court  may  order  all  or  part 
of  said  property,  including  the  rights  of  the  absentee  or 
of  the  non-resident  in  land,  to  be  sold  at  public  or  private 


SETTLEMENT   OF   ESTATES   OF  ABSENTEES.  345 

sale  to  supply  money  for  payments  authorized  by  this 
chapter  or  for  re-investment  approved  by  the  court." 

"  The  court  may  order  said  property  or  its  proceeds 
acquired  by  mortgage,  lease,  or  sale  to  be  applied  in  pay- 
ment of  charges  incurred  or  that  may  be  incurred  in  the 
support  and  maintenance  of  the  absentee's  wife  and  minor 
children,  and  to  the  discharge  of  such  debts  as  may  be 
proved  against  said  absentee." 

"  The  receiver  shall  be  allowed  such  compensation  and 
such  disbursements  as  the  court  orders  to  be  paid  out  of 
said  property  or  its  proceeds.  If  such  absentee  appears 
within  fourteen  years  after  the  date  of  the  disappearance 
and  absconding  as  found  and  recorded  by  the  court,  the 
receiver  shall  account  to  him  for,  deliver,  and  pay  over 
the  unexpended  balance  of  said  property.  If,  within  said 
fourteen  years,  an  administrator,  executor,  assignee  in 
insolvency,  or  trustee  in  bankruptcy  of  said  absentee  is 
appointed,  such  receiver  shall  account  for,  deliver,  and 
pay  over  to  him  the  unexpended  balance  of  said  property. 
If  said  absentee  does  not  appear  and  claim  said  property 
within  said  fourteen  years,  all  the  right,  title,  and  interest 
of  said  absentee  in  said  property,  real  or  personal,  or  the 
proceeds  thereof,  shall  be  barred,  and  no  action,  suit,  or 
petition  in  any  form  shall  be  commenced  by  said  absentee 
after  the  expiration  of  said  fourteen  years  for  or  on  ac- 
count of  said  property  or  its  proceeds." 

"  If,  at  the  expiration  of  said  fourteen  years,  said  prop- 
erty has  not  been  accounted  for,  delivered,  or  paid  over 
under  the  provisions  of  the  preceding  section,  the  court 
shall  order  the  distribution  of  the  unexpended  balance 
thereof  to  the  persons  to  whom,  and  in  the  shares  and 
proportions  in  which,  it  would  have  been  distributed  if 
said  absentee  had  died  intestate  on  the  day  fourteen  years 


346       PROCEEDINGS  IN  THE  TROBATE  COURTS. 

after  the  date  of  the  disappearance  or  absconding  as  found 
and  recorded  by  the  court." 

"  If  such  receiver  of  the  property  of  an  absentee  is  not 
appointed  within  thirteen  years  after  the  date  found  by 
the  court  under  the  provisions  of  section  five,  the  time 
limited  for  accounting  for,  or  fixed  for  distributing,  said 
property  or  its  proceeds,  or  for  barring  actions  relative 
thereto,  shall  be  one  year  after  the  date  of  the  appoint- 
ment of  the  receiver  instead  of  the  fourteen  years  pro- 
vided in  the  two  preceding  sections.  If  within  fourteen 
years  after  the  date  of  the  appointment  of  such  receiver 
of  the  property  of  a  non-resident,  said  non-resident  or  an 
administrator,  executor,  assignee  in  insolvency,  or  trustee 
in  bankruptcy,  of  said  non-resident  does  not  appear  and 
claim  said  property  or  its  proceeds,  all  the  right,  title,  and 
interest  of  said  non-resident  in  and  to  said  property,  real 
or  personal,  or  the  proceeds  thereof,  shall  be  barred,  and 
no  action,  suit,  or  petition  in  any  form  shall  be  begun 
by  said  non-resident  after  the  expiration  of  said  fourteen 
years  for  or  on  account  of  said  property  or  its  proceeds  ; 
and  the  remainder  thereof  shall  be  distributed  as  provided 
in  section  eleven,  as  if  said  non-resident  had  died  intestate 
on  the  day  fourteen  years  after  the  date  of  the  appoint- 
ment of  the  receiver."  ^ 

EIGHT  OF  REPRESENTATION. 

Inheritance  or  succession  "  by  right  of  representation  " 
is  the  taking  by  the  descendants  of  a  deceased  heir  of 
the  same  share  or  right  in  the  estate  of  another  person 
as  their  parent  would  have  taken  if  living.^     If  the  an- 

1  R.  L.  c.  U4,  as  amended  by  St.  1902,  c.  544. 

2  R.  L.  c.  133,  §  6. 


NEXT   OF   KIN.  347 

cestor  leaves  children,  and  there  is  no  living  issue  of 
any  deceased  child,  they  will  share  his  estate  equally  ;  if 
he  leaves  grandchildren  only,  they  will  take  it  in  equal 
shares ;  and  if  he  has  no  children  or  grandchildren 
living  at  the  time  of  his  death,  his  great-grandchildren, 
if  any,  being  his  lineal  descendants,  and  all  of  an  equal 
degree  of  consanguinity  to  him,  will  take  the  inheritance 
equally. 

But  when  the  lineal  descendants  of  the  ancestor,  living 
at  the  time  of  his  death,  are  not  of  an  equal  degree  of 
consanguinity  to  him,  —  as,  for  instance,  when  he  leaves 
one  son  and  two  or  more  grandchildren  who  are  the 
children  of  a  deceased  son,  —  the  rule  of  representation 
applies.  The  son,  in  such  case,  takes  half  the  estate,  and 
the  children  of  the  deceased  son  represent  their  father, 
and,  together,  take  the  other  half,  which  is  the  same  share 
that  their  father  would  have  taken  if  living.  Or  suppose 
the  ancestor  leaves  B,  his  only  surviving  son,  and  D  and 
E,  grandsons  by  his  deceased  son,  C,  and  F  and  G, 
great-grandsons  by  H,  a  daughter  of  C,  H  being  also 
dead.  Here  would  be  lineal  descendants  living  in  three 
different  degrees  of  consanguinity ;  namely,  a  son,  two 
grandsons,  and  two  great-grandsons ;  B,  the  son,  would 
take  the  half  estate ;  D  and  E,  two  of  the  three  children 
of  C,  would  take  two-thirds  of  the  other  half ;  and  F  and 
G  would  take  the  remaining  third  of  the  second  half ; 
and  all  would  hold  as  tenants  in  common. 

AS   TO   THE   NEXT   OP   KIN. 

The  "  next  of  kin,"  to  whom  the  estate  descends  when 
the  intestate  leaves  no  issue,  and  no  father,  mother, 
brother,  or  sister,  are  to  be  ascertained  by  reference  to  the 
rules  of  the  civil  law,  according  to  which  the  degrees  of 


348  PROCEEDINGS   I>T   THE    PROBATE    COURTS. 

kindred  are  computed.^  According  to  those  rules,  the 
father  of  the  intestate  stands  in  the  first  degree,  his  grand- 
father in  the  second,  his  great-grandfather  in  the  third, 
etc.  The  child  of  the  intestate  is  also  in  the  first  degree, 
his  grandchild  in  the  second,  his  great-grandchild  in  the 
third,  the  rule  of  computation  being  the  same  both  in  the 
ascending  and  descending  lines.  The  degree  of  kindred 
in  which  a  collateral  kinsman  stands  is  calculated  by 
counting  upwards  from  the  intestate  to  the  common  an- 
cestor of  both,  and  then  downwards  to  such  collateral 
relative,  reckoning  one  degree  for  each  person.  Thus,  the 
intestate  and  his  cousin  are  related  in  the  fourth  degree ; 
the  intestate's  father  being  in  the  first  degree,  his  grand- 
father, their  common  ancestor,  in  the  second,  his  uncle, 
counting  downwards  from  the  common  ancestor,  in  the 
third,  his  uncle's  son  (his  cousin),  in  the  fourth.  The 
intestate's  brother  stands  in  the  second  degree,  his  nieces 
and  nephews  in  the  third.^ 

The  statute  makes  no  distinction  between  ascendants 
and  descendants,  and  none  between  kindred  on  the  father's 
and  on  the  mother's  side ;  ^  but  Tfhen  there  are  two  or 
more  collateral  kindred  in  equal  degree,  those  claiming 
through  the  nearest  ancestor  are  preferred  to  those  claim- 
ing through  an  ancestor  more  remote.  The  intestate's 
nephew,  for  instance,  is  preferred  to  the  intestate's  uncle, 
though  both  are  in   the   same  degree  of   kindred.    The 

1  R.  L.  c.  133,  §  2,  For  the  meaning  of  the  term  "  blood  relations," 
see  Cummings  v.  Cummings,  146  Mass.  507.  See  also  Whall  v.  Con- 
verse, 146  Mass.  345. 

2  Swasey  v.  Jaques,  144  Mass.  135  ;  Fargo  v.  Miller,  150  Mass.  22.5. 

^  The  next  of  kin  of  a  deceased  intestate,  being  her  paternal  grand- 
mother and  her  maternal  grandfather  and  grandmother,  are  each 
entitled  to  a  third  part  of  the  intestate's  estate.  Kuapp  v.  Windsor, 
6  Cush.  156 ;  Balch  v.  Stone,  149  Mass.  42. 


OMISSION    OF   CHILD    OR   ISSUE    IN    WILL.  349 

common  ancestor  of  the  intestate  and  his  uncle  is  the 
intestate's  grandfather,  while  the  nephew  claims  through 
the  intestate's  father,  the  nearer  ancestor.^ 

Kindred  of  the  half  hlood  inherit  equally  with  those  of 
the  whole  blood  in  the  same  degree.^ 

ISSUE   OF   THE   TESTATOR   NOT   PROVIDED    FOR   IN    HIS   WILL. 

"  If  a  testator  omits  to  provide  in  his  will  for  any  of 
his  children  or  for  the  issue  of  a  deceased  child,  they  shall 
take  the  same  share  of  his  estate  that  they  would  have 
taken  if  he  had  died  intestate,  unless  they  have  been  pro- 
vided for  by  the  testator  in  his  lifetime,  or  unless  it  appears 
that  the  omission  was  intentional,  and  not  occasioned  by 
accident  or  mistake."  ^ 

That  the  omission  was  intentional,  and  not  occasioned 
by   accident  or  mistake,  may  be    manifest  from  the  will 

1  Minot  V.  Harris,  132  Mass.  528. 

2  R.  L.  c.  133,  §  2.  "Heirs  at  law"  means  next  of  kin.  White 
V.  Stanfield,  146  Mass.  424 ;  Kendall  v.  Gleason,  152  Mass.  457. 

The  words  "  nearest  of  kin  "  mean  nearest  blood  relations.  Swasey 
V.  Jaques,  144  Mass.  135 ;  Kenistou  v.  Mayhew,  169  Mass.  169  ;  Leon- 
ard V.  Haworth,  171  Mass.  500. 

If  the  grantor  in  a  declaration  of  trust,  as  well  as  the  trustee,  life 
tenant,  and  the  remainderman  whose  "  heirs  at  law  ''  are  to  take  their 
shares  in  a  certain  contingency,  are  all  domiciled  in  this  state  at  the 
time  of  its  execution  here,  and  provision  is  made  for  the  apppointment 
here  of  a  successor  in  case  of  the  trustee's  death,  such  "  heirs  at  law  " 
are  to  be  determined  by  the  law  of  this  commonwealth.  Codman  v. 
Krell,  152  Mass.  214. 

8  R.  L.  c.  135,  §  19. 

If  the  testator  gives  his  daughter  an  annuity  by  will,  and  she  dies 
in  his  lifetime,  her  issue  born  before  the  making  of  the  will  do  not 
take  any  part  of  his  estate,  although  the  will  contains  no  specific  pro- 
vision for  such  issue.     Wilder  i',  Thayer,  97  Mass.  439. 

Where  the  omission  was  occasioned  by  the  testator's  mistake  as  to 
the  legal  eifect  of  the  will  and  its  provisions,  the  children  were  allowed 
to  share  in  the  estate.    Ignorance  of  the  testator  and  oversight  of  the 


350       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

itself.^  It  has  been  held  that  the  fact  that  the  child  was 
named  in  the  will,  though  no  legacy  was  given  to  him, 
was  sufficient  to  show  that  he  was  not  forgotten  by  the 
testator,  and  that  the  omission  to  provide  for  him  was 
intentional.  And  where  the  testator  devised  estate  to  the 
children  of  his  daughter,  describing  them  as  such,  but 
giving  her  no  legacy,  the  same  rule  was  applied.^  The 
fact  that  the  omission  was  designed  may  also  be  shown 
by  parol  evidence.^     Evidence  of  declarations  of  the  tes- 

scribe  are  alike  grounds  of  relief.  Ramsdill  v.  Wentworth,  101  Mass. 
125.     But  see  Hurley  v.  O'Sullivan,  137  Mass.  86. 

A  testator  gave  a  legacy  to  a  child  not  his  own,  and  afterwards 
adopted  her.  Held,  that  she  was  not  entitled  to  share  in  his  estate  as 
if  he  had  died  intestate.     Bowdlear  v.  Bowdlear,  112  Mass.  184. 

A  testatrix  gave  all  her  estate  to  her  husband,  and  had  a  child  born 
a  month  after  the  will  was  made.  It  was  found  that  the  omission 
to  provide  for  the  child  was  intentional.  Peters  v.  Siders,  126  Mass, 
135. 

A  child  of  a  testator,  born  after  his  death,  cannot,  in  any  proper 
sense  of  the  term,  be  deemed  provided  for  in  his  will  by  a  general 
devise  of  a  reversion  to  the  heirs  of  the  testator.  Waterman  v.  Haw- 
kins, 63  Maine,  156 ;  Bowen  v.  Hoxie,  137  Mass.  527. 

The  opinion  of  Judge  Clifford  in  Loring  v.  Marsh,  2  Clifford  311, 
contains  a  review  of  all  the  then  existing  statutes  and  decisions  upon^ 
this  subject. 

There  is  no  omission  to  provide  by  will  for  children,  if  there  should 
be  any  living  at  the  testator's  decease,  if,  after  a  bequest  to  his  wife, 
whom  he  knew  to  be  pregnant  at  the  time  of  making  the  will,  he  gave 
the  rest  of  his  property  to  a  trustee  to  pay  the  whole  income  to  her 
during  life  and  the  reversion  to  those  who  at  the  time  of  her  death 
would  be  his  heirs-at-law  by  blood.      Minot,  Petitioner,  164  Mass.  38. 

1  Prentiss  v.  Prentiss,  11  Allen,  47. 

2  Terry  v.  Foster,  1  Mass.  146  ;  Church  v.  Crocker,  3  Mass.  17 ; 
Wild  V.  Brewer,  2  Mass.  570  ;  Wilder  v.  Goss,  14  Mass.  357. 

8  Ramsdill  v.  Wentworth,  101  Mass.  125  ;  Buckley  v.  Gerard,  123 
Mass.  8 ;  Ingersoll  v.  Hopkins,  170  Mass.  403. 

Oral  evidence  that  a  testatrix  who  devised  all  her  estate  to  her  hus- 
band was  a  woman  of  great  intelligence  and  capacity,  and  very  fond 
of  her  children,  who  were  of  tender  age  and  never  separated  from  her, 


OMISSION    OF    CHILD   OR   ISSUE   IN   WILL.  351 

tator  is  admissible  to  show  that  the  omission  was  inten- 
tional.^ The  burden  of  proof  is  upon  the  party  opposing 
the  claim  of  the  child  to  show  that  the  omission  was 
intentional.2  The  statute  applies  to  children  born  after 
the  making  of  the  will,  and  before  tlie  death  of  the  father  ;^ 
but  it  has  been  held  not  to  apply  to  cases  where  the  tes- 
tator omits  to  provide  for  an  illegitimate  child.*  Nor  docs 
it  apply  to  cases  where  the  testator  has  a  power  of  appoint- 
ment over  the  estate  to  dispose  of  the  inheritance,  but  only 
to  cases  where  it  is  the  testator's  own  estate  in  fee.^ 

A  child  for  whom  the  testator  has  unintentionally 
omitted  to  provide  may  cause  his  share  of  the  personal 
estate  to  be  ascertained  by  applying  to  the  probate  court 
for  a  decree  of  distribution.  His  share  or  proportion  of 
the  real  estate,  if  certain  and  not  disputed  by  parties 
interested,  may  also  be  assigned  to  him  by  the  probate 
court  ;^  if  his  share  is  disputed  and  uncertain,  he   must 

that  she  had  great  affection  for  her  husband  and  the  most  perfect  con- 
fidence in  him,  and  that  he  was  very  devoted  to  her,  is  admissible  and 
•will  justify  a  finding  that  her  omission  to  provide  in  her  will  for  her 
children  was  intentional  and  not  occasioned  by  accident  or  mistake 
although  no  declaration  of  the  intention  of  the  testatrix  appears. 
Buckley  v.  Gerard,  123  Mass.  8. 

1  Wilson  ?;.  Fosket,  6  Met.  400  ;  Converse  v.  Wales,  4  Allen,  512. 

2  Ramsdill  v.  Wentworth,  106  Mass.  320. 

^  A  testator  gave  a  small  legacy  to  each  of  his  children,  living  at 
the  date  of  his  will,  by  name  (all  of  whom  died  before  liim  without 
issue),  and  the  residue  of  his  property  to  his  wife  ;  and  afterwards  had 
other  children  born  to  him.  Held,  that  evidence  of  his  having  said  to 
his  wife,  since  the  birth  of  his  younger  children,  "  You  will  have  all 
there  is,"  was  not  sufficient  to  show  an  intent  to  omit  to  provide  for 
them  in  his  will,  and  that  they  were  entitled  to  the  same  share  of  his 
estate  as  if  he  had  died  intestate.     Bancroft  v.  Ives,  3  Gray,  367. 

*  Kent  V.  Barker,  2  Gray,  535. 

5  Sewall  V.  Wilmer,  132  Mass.  131  ;  Blagge  v.  Miles,  1  Story,  426 

'  See  post,  chap,  xvii.,  on  Partition. 


352  PKOCEEDINGS    IN   THE    PllOBATE    COURTS. 

apply  to  the  common  law  courts  for  an  assignment  of  his 
share  of  the  real  estate. 


POSTHUMOUS   CHILDREN. 

"  If  a  child  of  the  testator,  born  after  his  father's 
death,  has  no  provision  made  for  him  by  his  father  in  his 
will  or  otherwise,  he  shall  take  the  same  share  of  his 
father's  estate  which  he  would  have  taken  if  his  father  had 
died  intestate."  ^  Devisees  and  legatees  are  required  to 
contribute  equally,  in  proportion  to  the  value  of  what  they 
respectively  receive  under  the  will,  to  the  share  of  a  pos- 
thumous child  or  a  child  omitted  in  the  will  of  his  parent, 
unless  there  is  some  provision  in  the  will  requiring  a  dif- 
ferent apportionment,  in  order  to  give  effect  to  the  intention 
of  the  testator  as  to  that  part  of  his  estate  which  passes  by 
his  will.2 

ISSUE   OP   DEVISEE   OR    LEGATEE     DYING    IN     THE    TESTATOR'S 

LIFETIME. 

"  If  a  devise  or  legacy  is  made  to  a  child  or  other  relation 
of  the  testator,  who  dies  before  the  testator,  but  leaves 
issue  surviving  the  testator,  such  issue  shall,  unless  a  dif- 
ferent disposition  is  made  or  required  by  the  will,  take  the 
same  estate  which  the  person  whose  issue  they  are  would 
have  taken  if  he  had  survived  the  testator,"  ^ 

1  R.  L.  c.  135,  §  20;  Bowen  v.  Hoxie,  137  Mass.  527. 

2  R.  L.  c.  13.5,  §  25 ;  Bowen  v.  Hoxie,  supra. 

3  R.  L.  c.  135,  §  21.  Stockbridge,  Petitioner,  145  Mass.  519; 
O'Rourke  v.  Beard,  151  Mass.  9;  Ladd  v.  Chase,  155  Mass.  417;  Lee 
r.  Gay,  155  Mass.  423. 

A  testator  by  his  will  bequeathed  the  residue  of  his  estate  to  A. 
and  B.,  the  latter  being  the  testator's  brother-iu-law,  "to  be  equally 
divided  between  them,  share  and  share  alike,  to  them  and  their  heirs 


DESCENT   AND   DISTRIBUTION.  353 

SETTLEMENT    OF    ESTATES   OF   NON-RESIDENTS. 

"  If  administration  is  taken  in  this  commonwealth  upon 
the  estate  of  a  person  wlio  was  an  inhabitant  of  another 
state  or  country,  his  estate  found  here  sliall,  after  payment 
of  his  debts,  be  disposed  of  according  to  his  will,  if  he  left 
any  duly  executed  according  to  law ;  otherwise  his  real 
property  shall  descend  according  to  the  laws  of  this  com- 
monwealth, and  his  personal  property  shall  be  distributed 
and  disposed  of  according  to  the  laws  of  the  state  or 
country  of  which  he  was  an  inhabitant." 

"  After  the  payment  of  all  debts  for  which  such  estate  is 
liable  in  this  commonwealth,  the  residue  of  the  personal 
property  may  be  distributed  and  disposed  of,  as  provided 
in  the  preceding  section,  by  the  probate  court;  or,  in  the 
discretion  of  the  court,  it  may  be  transmitted  to  the  execu- 
tor or  administrator,  if  any,  in  the  state  or  country  of 
which  the  deceased  was  an  inhabitant,  to  be  there  disposed 
of  according  to  the  laws  thereof."  ^ 

and  assigns."     B.  died  in  the  testator's  lifetime,  and  it  was  held  that 
the  legacy  to  him  lapsed.     Ilorton  v.  Earle,  162  Mass.  448. 

A  wife  is  not  a  "  relation  "  within  the  meaning  of  the  statute. 
Esty  V.  Clark,  101  Mass.  36.  Nor  is  a  stepson.  Nor  is  a  brother-in- 
law.  Horton  v.  Earle,  supra.  Only  relations  by  blood  are  intended. 
Kimball  v.  Story,  108  Mass.  382. 

In  the  case  of  a  bequest  of  an  annuity  for  life,  the  issue  of  the  lega- 
tee, born  before  the  making  of  the  will,  do  not  take  any  share  in  the 
estate.  Wilder  v.  Thayer,  97  Mass.  439.  See  Morse  v.  Mason,  11 
Allen,  36;  Sears  r.  Putnam,  102  Mass.  10;  Moore  w.  Weaver,  16  Gray, 
305 ;  Paine  v.  Prentiss,  5  Met.  396. 

1  R  L.  c.  143,  §§  1,  2;  Dawes  v.  Boylston,  9  Mass  337;  Stevens  r. 
Gaylord,  11  Mass.  256;  Hooker  v.  Olmstead,  6  Pick.  481;  Fay  v. 
Haven,  3  IMet.  109;  Emery  r.  Batchelder,  132  ftlass.  452;  Newell 
V.  Peaslee,  151  Mass.  603 ;  Welch  v.  Adams,  152  Mass.  77;  Cowden  v. 
Jacobson,  165  Mass.  240.  As  to  distribution  of  insolvent  estates  of 
non-residents,  see  page  236. 

23 


354       PKOCEEDINGS  IN  THE  PKOBATE  COURTS. 

The  distribution  of  intestate  estates  is  within  the  pecu- 
liar and  exclusive  jurisdiction  of  the  probate  courts.^  The 
administrator,  or  any  of  the  distributees,  on  application 
to  the  probate  court,  can  obtain  a  decree  of  distribution 
specifying  the  names  of  persons  who  are  entitled  to  share 
in  the  estate,  and  the  amount  to  which  each  is  entitled. 
In  the  great  majority  of  cases  of  persons  dying  intestate, 
the  heirs  and  distributees  will  be  the  children,  parents, 
brothers,  and  sisters,  or  other  near  connections,  all  of 
whom  may  be  known  to  the  administrator ;  and  in  such 
cases  the  administrator  is  practically  safe  in  paying  to 
each  distributee  the  amount  to  which  he  is  entitled,  and 
taking  his  receipt  therefor,  without  first  obtaining  a  decree 
of  distribution.  But  when  the  heirs  or  any  of  them  arc 
residing  out  of  the  commonwealth,  or  when  the  adminis- 
trator has  doubts  as  to  who  is  entitled  to  share  in  the  estate, 
or  as  to  the  proportions  of  the  several  heirs,  he  should 
apply  to  the  court  for  a  decree  of  distribution.  And  a 
decree,  made  after  such  notice  as  the  court  may  order, 
settles  the  facts  as  to  who  are  entitled,  and  what  kin  are 
living,  and  will  protect  an  administrator,  acting  in  good 
faith,  in  conforming  to  it ;  ^  and  he  is  held  by  his  bond  to 
distribute  the  estate  as  the  court  may  order. 

^  The  heirs  and  next  of  kin  of  an  intestate,  after  conveying  to  other 
persons  all  their  interest  in  his  real  and  personal  estate,  are  not  enti- 
tled, against  the  wish  of  their  grantee,  to  a  decree  for  the  assignment 
and  distribution  of  real  estate  held  by  the  administrator  under  his 
foreclosure  of  a  mortgage  thereof  to  the  intestate.  Stevens  v.  Palmer, 
15  Gray,  505. 

A  distributive  share  in  a  minor  intestate's  estate  is  attachable  by 
trustee  process  as  soon  as  the  administrator  thereof  has  given  bond 
and  received  letters  of  administration,  although  the  minor's  guardian 
still  holds  the  personal  estate,  and  his  final  account  has  not  been  filed 
or  allowed.     Mechanics'  Savings  Bank  r.  VVaite,  150  Mass.  234. 

2  Loring  v.  Steiaeman,  1  Met.  204;  Pierce  v.  Prescott,  128  Mass. 


DESCENT   AKD   DISTRIBUTION.  355 

A  decree  of  distribution  may  also  be  necessary  to  enable 
the  next  of  kin  to  bring  a  suit  on  the  bond  of  an  unfaith- 
ful administrator  for  the  recovery  of  his  distributive  share 
of  the  estate. 

THE    PETITION    FOR   DISTRIBUTION. 

The  petition  for  a  decree  of  distribution  should  state 
the  names  and  residences  of  each  of  the  supposed  distrib- 
utees, the  degree  of  kindred  in  which  each  of  them  stands 
to  the  intestate,  the  balance  in  the  hands  of  the  adminis- 
trator for  distribution,  the  amount  of  any  advancement 
made  by  the  intestate  in  his  lifetime  to  either  of  the  heirs, 
and  whether  such  advancement  was  made  from  the  real 
or  personal  estate,  or  both.  The  petition  may  be  made 
by  the  administrator,  or  any  party  interested  in  the 
distribution. 

Upon  such  petition,  such  notice  must  be  given  as  will 
be  most  likely  to  reach  the  parties  interested.^  The 
supreme  court  of  probate,  in  the  case  of  an  English  sub- 
ject dying  in  this  commonwealth,  has  ordered  notice  to 
be  published  in  a  London  newspaper.     The  order,  what- 

140;  Shores  f.  Hooper,  153  Mass.  232;  Defriez  v.  CoflBn,  155  Mass. 
203  ;  Lamson  v.  Knowles,  170  Mass.  297. 

A  testator  gave  a  share  of  his  estate,  consisting  of  personalty  here, 
and  laud  in  another  state,  to  his  brother's  wife,  who  was  domiciled 
there,  "  to  have  and  to  hold  the  same  to  her  daring  her  life,  and  at 
her  decease  to  her  heirs  at  law  and  their  heirs  and  assigns  for- 
ever." It  was  held,  that  as  to  the  personalty  which  remained  at  her 
death,  it  should  go  to  her  heirs  at  law  according  to  the  statutes  of 
distribution  then  in  force  in  Massachusetts.  Lincoln  v.  Perry,  149 
Mass.  368. 

^  Under  the  pro\nsion  that  notice  may  be  dispensed  with  when  all 
the  "parties  entitled  thereto"  give  their  assent  in  writiug  or  waive 
notice,  creditors  of  the  estate  are  entitled  to  notice.  Browne  v. 
Doolittle,  151  Mass.  595. 


356       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

ever  may  be  its  terms,  must   be   complied   with   by  the 
petitioner,  before  a  decree  of  distribution  can  issue.^ 

THE    DISTRIBUTION. 

A  decree  of  distribution  expressed  in  the  general  terms 
used  by  the  statute  to  designate  the  heirs  at  law  is  not 
sufficient.  It  is  for  the  court  to  ascertain  who  are  the 
existing  individuals  entitled,  under  the  statute,  to  share 
in  the  estate,  to  decree  distribution  to  them  by  name,  and 
determine  the   amount  due  to  each.^     If  all   the  parties 

^  An  action  will  not  lie  against  an  administrator  for  a  distributive 
share  of  the  estate  before  a  decree  of  distribution.  Cathaway  v. 
Bowles,  136  Mass.  54. 

2  Loring  v.  Steineraan,  1  Met.  204.  The  court  will  not  order  a  dis- 
tributive share  to  be  paid  to  a  person  to  whom  the  heir  has  assigned 
it ;  the  investigation  of  such  an  assignment  is  not  within  the  jurisdic- 
tion of  the  probate  court.  Knowlton  v.  Johnson,  40  Me.  489 ;  Wood 
V.  Stone,  2  Chandler  (N.  H.),  572.  Nor  will  the  court  order  the  share 
of  an  heir  to  be  paid  to  tlie  other  heirs  on  the  ground  that  he  is 
indebted  to  them.  Hancock  v.  Hubbard,  19  Pick.  167.  See  Lenz  v. 
Prescott,  144  Mass.  515. 

The  widow's  distributive  share  may  be  assigned  to  her,  although  by 
an  ante-nuptial  agreement  she  released  all  claims  on  her  husband's 
estate.  Sullings  v.  Richmond,  5  Allen,  187 ;  Blackinton  v.  Blackin- 
ton,  110  Mass.  461.  But  the  agreement  will  be  enforced  in  equity. 
Tarbell  v.  Tarbell,  10  Allen,  278;  Paine  v.  Hollister,  139  Mass. 
144. 

An  executor,  administrator,  or  trustee,  having  in  charge  any  prop- 
erty subject  to  a  tax  on  collateral  successions,  shall  deduct  the  tax 
therefrom,  or  shall  collect  the  tax  from  the  person  entitled  to  the 
property,  and  he  shall  not  deliver  property  or  a  specific  legacy  subject 
to  the  tax  to  any  person  until  he  has  collected  the  tax.  R.  L.  c.  15, 
§5. 

Whenever  the  devisee,  legatee,  or  heir,  who  has  paid  any  such  tax, 
afterwards  refunds  any  portion  of  the  property  on  which  it  was  paid, 
or  it  is  judicially  determined  that  the  whole  or  any  part  of  such  tax 
ought  not  to  have  been  paid,  the  tax  or  the  due  proportional  part  of  it 
shall  be  paid  back  to  kim  by  the  executor,  administrator,  or  trustee. 
Ibid.  §  15. 


DESCENT   AND   DISTRIBUTION.  357 

appear  upon  notice,  or  are  known  to  be  living,  these 
questions  are  easily  determined.  A  more  difficult  ques- 
tion sometimes  arises  when  a  descendant  or  next  of  kin  of 
the  intestate  is  absent  from  the  state  and  cannot  be  found. 
Whether  such  person  shall  be  included  in  the  distribution, 
as  he  is  entitled  to  be  if  living,  must  be  determined  by 
the  rules  of  evidence  and  presumptions  of  facts  from 
circumstances  which  are  resorted  to  by  all  tribunals  in 
determining  questions  of  fact.  The  possibility  of  mistake 
cannot  prevent  the  distribution,  and  the  distribution  when 
made  must  be  of  the  entire  estate.  If  such  absent  heir 
left  his  usual  home  for  temporary  purposes  of  business  or 
pleasure,  and  has  not  been  heard  from  or  known  to  be 
living  for  the  term  of  seven  years,  the  presumption  of 
life  ceases  and  that  of  his  death  arises.  It  must  appear 
that  he  has  not  been  heard  of  by  those  persons  who  would 
be  likely  to  hear  of  him,  or  that  search  has  been  ineffectu- 
ally made  for  such  a  person.^  This  presumption  of  death 
may  be  rebutted  by  counter-evidence.  Where  other  cir- 
cumstances concurred,  the  fact  of  death  has  been  found, 
without  direct  evidence,  from  the  lapse  of  a  shorter  period 
than  seven  years ;  as,  when  the  party  sailed  in  a  vessel 
which  had  not  been  heard  from  for  a  much  longer  time 
than  was  necessary  for  the  accomplishment  of  the  voy- 
age ;  2  but  the  presumption  of  law  does  not  attach  to  the 
mere  lapse  of  time  short  of  seven  years. 

If  such  person  was  unmarried  at  the  time  he  went 
abroad,  there  is  no  presumption  of  his  subsequent  mar- 
riage ;  and  if  the  fact  of  his  marriage  is  proved,  there  is 
no  presumption  that  he  left  issue.     These  are  facts  to  be 

1  France  v.  Andrews,  15  Adol.  &  E.  756 ;  Marden  i'.  Boston,  155 
Mass.  359. 

2  Watson  V.  King,  1  Stark.  97. 


358       rROCEEDINGS  IN  THE  PROBATE  COURTS. 

proved,  and  the  burden  of  proof  of  the  affirmative  is  on 
the   party  who  avers  it.^ 

Under  some  circumstances,  it  is  impossible  to  ascertain 
with  certainty  what  persons  are  entitled  to  inherit  an 
estate,  as  when  several  near  relatives  perish  by  shipwreck 
or  other  common  disaster.^  In  the  absence  of  all  evidence 
of  the  particular  circumstances  of  the  calamity,  it  is 
presumed  that  all  perished  together,  and  that  therefore 
neither  could  transmit  rights  to  the  other.  Thus,  where 
a  father  and  his  only  child  perished  at  sea,  there  being 
no  evidence  showing  which  survived,  it  was  decided  that 
his  estate  should  go  to  his  nephews  and  nieces,  his  heirs 
at  law,  and  not  to  her  uncles  and  aunts,  who  would  have 
taken  it  if  she  had  survived  her  father  and  the  estate  had 
vested  in  her.^  It  would  be  reasonable  and  proper  to 
hold  that  one  of  middle  age  and  in  the  full  vigor  of  life 
would  ordinarily  survive  a  mere  infant  or  a  person  well 
stricken  in  years.  And  evidence  of  circumstances,  how- 
ever slight,  attending  the  disaster,  is  important,  as  from 
slight  circumstances  inferences  of  fact  materially  affecting 
the  question  may  be  drawrn. 

The  time  when  distribution  can  be  properly  made  must 
depend  upon  the  circumstances  of  each  case.  If  all  the 
persons  entitled  to  shares  are  known,  the  distribution  may 
be  made  at  any  time  after  the  debts  are  paid.^  But  as  the 
administrator  is  liable  to  the  actions  of  creditors  for  two 
years  after  he  gives  bond,  the  payment  of  any  distributive 

1  Loring  v.  Steineman,  1  Met.  211 ;  Doe  v.  Griffin,  15  East,  293;  In 
the  Goods  of  Main,  1  Swa.  &  Trist.  11. 

2  Batchelder,  Petitioner,  147  Mass.  465. 
8  Coye  V.  Leach,  8  Met.  371. 

*  If  legacies  or  distributive  shares  are  paid  within  two  years,  the 
legacy  tax  thereon  is  payable  at  the  time  the  same  are  paid.  R.  L. 
c.  15,  §  4. 


DESCENT   AND   DISTRIBUTION.  359 

share  during  the  continuance  of  such  liability  may  be  at- 
tended with  risk,  unless  the  distributee  first  gives  bond, 
as  the  court  may  require  him  to  do,  for  the  protection  of 
the  administrator.! 

The  court,  after  notice  to  all  persons  interested,  may, 
subject  to  the  rights  of  creditors,  order  a  partial  distribu- 
tion, when  it  can  be  made  without  detriment  to  the  estate.^ 

If  by  the  provisions  of  a  will  a  legacy  is  to  be  distributed 
in  whole  or  in  part  among  the  heirs  or  next  of  kin  of  any 
person,  or  among  persons  of  a  certain  class,  the  probate 
court,  upon  the  application  of  any  person  interested,  after 
notice,  may  order  distribution  to  be  made  among  such 
persons  as  according  to  the  will  seem  to  be  entitled  to  the 
legacy.^ 

A  debt  due  to  the  estate  from  an  heir  or  distributee  is 
set  off  against  and  deducted  from  his  share  of  the  estate. 
The  probate  court  determines  as  to  the  validity  and 
amount  of  the  debt,  and  may  make  all  decrees  and  orders 
which  may  be  necessary  or  proper  to  carry  into  effect  such 
set-off  or  deduction ;  but  this  shall  not  prejudice  any 
remedy  of  an  executor  or  administrator  for  the  recovery  of 
such  debt  nor  affect  the  liability  of  the  legatee  or  distribu- 
tee for  the  excess  of  his  indebtedness  over  the  amount 
of  his  share  in  or  claim  upon  the  estate  to  which  he  is 
indebted.* 

^  R.  L.  c.  141,  §  20.  A  decree  allowing  distribution  of  all  the 
personal  estate  before  the  end  of  the  two  years  of  administration  is  void 
as  to  creditors  prosecuting  their  claims  within  that  period,  lirowne  v. 
Doolittle,  151  Mass.  59-5.     See  Newell  v.  Peaslee,  151  Mass.  601. 

2  R.  L.  c.  141,  §  21  ;  Browne  v.  Doolittle,  supra;  Welch  v.  Adams, 
152  Mass.  85;  Shores  v.  Hooper,  153  Mass.  233. 

3  R.  L.  c    141,  §  22. 

*  Ibid.  §  23;  Rlackler  v.  Boott,  114  Mass.  24. 

A  debt  due  from  a  legatee  which  at  the  death  of  the  testator  was 
barred  by  the  statute  of  limitatious  cannot  be  deducted  from  the 


360  rKOCEEDINGS   IN   THE   PROBATE   COURTS. 


ADVANCEMENTS. 

The  subject  of  advancements  is  necessarily  to  be  consid- 
ered in  connection  with  the  descent  and  distribution  of 
intestate  estates.  Advancements  may  be  made  of  real  or 
personal  estate,  and  to  any  child  or  other  lineal  descendant. 
They  are  usually  made  with  a  view  of  establishing  a  son 
in  business,  or  on  the  event  of  marriage.  If  the  advance- 
ment is  equal  to,  or  exceeds,  the  amount  in  value  of  the 
share  which  the  child  would  have  taken  in  the  estate,  if  no 
advancement  had  been  made,  such  child  will  be  excluded 
from  any  share  in  the  distribution  ;  if  it  is  less  in  amount, 
such  child  will  be  entitled  to  sufficient  in  the  distribution 
to  make  up  his  full  share,  and  no  more.  If  he  dies  before 
the  intestate,  leaving  issue,  the  amount  of  his  advance- 
ment is  regarded  as  so  much  received  by  his  representa- 
tives towards  their  share  of  the  estate,  in  like  manner 
as  if  the  advancement  had  been  directly  to  them.^  He 
is  not  required  to  refund  any  part  of  the  advancement, 
although  it  exceeds  his  share  ;  ^  and  interest  is  not  to  be 
computed  on  it.^ 

If  the  advancement  is  made  in  real  estate,  its  value  is 
considered  as  part  of  tlie  real  estate  to  be  divided  ;  if  in 
personal  estate,  as  part  of  the  personal  estate ;  and  if  in 
either  case  it  exceeds  the  share  of  real  or  personal  estate, 
respectively,  that  would  have  come  to  the  heir  so  advanced, 
he  does  not  refund  any  part  of  it,  but  receives  so  much 

legacy,  unless  the  language   of  the  will   clearly  expresses  such  an 
intention.     Allen  v.  Edwards,  136  Mass.  138. 

This  statute  relates  only  to  personal  estate.  Jones  v.  Treadwell, 
169  Mass.  430. 

1  R.  L.  c.  140,  §  8. 

2  Ibid.  §  4 ;  Steams  v.  Stearns,  1  Pick.  161. 
*  Osgood  V.  Breed,  17  Mass.  356. 


DESCENT   AND   DISTRIBUTION.  —  ADVANCEMENTS.        361 

less  out  of  the  other  part  of  the  estate  as  will  make  his 
whole  share  equal  to  those  of  the  other  heirs  who  are  in 
the  same  degree  with  him.^ 

Questions  concerning  advancements  are  determined  by 
the  probate  court,  and  the  judgment  of  the  court  is  con- 
clusive, unless  appealed  from.  Questions  as  to  advance- 
ments of  personal  property  are  settled  by  the  decree  of 
distribution,  and  of  real  estate  by  the  decree  of  partition.^ 

EVIDENCE   OF   ADVANCEMENTS. 

The  advancement  must  be  proved  to  have  been  intended 
as  such,  chargeable  on  the  child's  share  of  the  estate ; 
otherwise,  it  will  be  deemed  an  absolute  gift  or  a  loan, 
as  the  case  may  be.  The  statute  prescribes  what  shall  be 
the  requisite  evidence  of  an  advancement :  "  Gifts  and 
grants  shall  be  held  to  have  been  made  as  advancements, 
if  they  are  expressed  in  the  gift  or  grant  to  be  so  made, 
or  if  charged  in  writing  as  such  by  the  intestate,  or 
acknowledged  in  writing  as  such  by  the  party  receiving 
them."^    It  is  not   expressly  provided   that  an  advance- 

1  R.  L.  c.  140,  §  5 ;  Bemis  v.  Stearns,  16  Mass.  200. 

2  The  probate  court  in  which  the  estate  of  a  deceased  person  is 
settled  may  hear  and  determine  all  questions  of  advancements  arising 
in  relation  to  such  estate,  or  such  questions  may  be  heard  and  deter- 
mined upon  a  petition  for  partition  either  in  the  superior  court  or  the 
probate  court ;  but  when  such  a  question  arises  upon  a  petition  for 
partition,  the  court  may  suspend  proceedings  until  the  question  has 
been  decided  in  the  probate  court  in  which  tlie  estate  of  the  deceased 
is  settled.  R.  L.  c.  140,  §  9.  When  a  child  in  consideration  of  a 
sum  paid  him  by  his  father,  by  way  of  advancement,  releases  his 
claim  to  his  share  of  the  inheritance,  although  the  sum  so  paid  was 
much  less  than  his  share  of  his  father's  estate  at  his  death  would 
have  been  worth,  it  shall  bar  him  of  his  share.  Kenney  v.  Tucker, 
8  Mass.  142. 

3  R.  L.  c.  140,  §  6  ;  Cummings  v.  Bramhall,  120  Mass.  552. 


362       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

mcnt  shall  not  be  proved  in  any  other  manner,  but  that  is 
undoubtedly  the  meaning  of  the  statute.  It  has  accord- 
ingly been  held  that  where  a  note  was  given  by  a  son  for 
money  received  by  him  of  his  father,  oral  testimony  was 
inadmissible  to  prove  that  the  money  so  received  was  an 
advancement.^  Various  sums  of  money,  charged  by  the 
parent  in  the  usual  way  of  keeping  accounts,  have  been 
held  not  to  be  an  advancement.''^  And  where  land  was 
conveyed  by  the  father  to  the  son,  there  being  nothing  in 
the  deed  to  show  the  fact,  it  was  held  not  to  be  an  advance- 
ment.^   The  execution  of  a  will  merges  all  prior  advance- 

1  Barton  v.  Rice,  22  Pick.  508. 

2  Ashley,  Appellant,  4  Pick.  21. 

3  Billiard  v.  Bullard,  5  Pick.  527.  A  written  acknowledgment, 
signed  by  husband  and  wife,  in  these  words,  "  Received  of  J.  S.  .$500, 
it  being  a  part  of  my  wife's  poition,"  and  found  among  the  notes  of 
J.  S.  after  his  decease,  is  sufficient  proof  of  an  advancement  to  the  wife. 
So  of  an  acknowledgment  in  writing  by  a  husband,  whose  wife  is 
insane,  of  a  gift  from  her  father  for  bei-  support,  "  as  a  part  of  her 
portion  out  of  her  father's  estate,"  preserved  by  the  father  in  a  bundle  of 
letters  relating  to  her  support  at  an  insane  asylum.  A  book  of  accounts 
kept  by  the  deceased,  with  three  leaves  cut  out,  together  with  evidence 
of  his  declarations  that  he  had  made  charges  in  his  book,  as  advance- 
ments to  his  children,  are  not  competent  evidence  of  such  advancements. 
Hart  well  v.  Rice,  1  Gray,  587. 

Where  a  child  gave  a  receipt  for  articles  delivered,  promising  to 
return  them  if  called  for,  and  the  parent  wrote  in  the  receipt  that  they 
were  to  answer  as  a  part  of  the  child's  portion,  it  was  held  to  be  an 
advancement.  So  of  the  words,  "  articles  that  I  let  my  daughter  N. 
have,"  in  a  book  containing  memoranda  by  a  parent  of  advancements 
to  his  other  children.     Bulkeley  v.  Noble,  2  Pick.  337. 

Entries  in  book  left  by  the  intestate,  showing  "the  moneys  I 
have  advanced  to  my  children  se-\  erally,  and  to  which  I  shall  give  credit 
to  any  or  each  of  them  as  they  may  pay  me  from  time  to  time,"  show 
loans  of  the  children,  not  advancements.    Bigelow  v.  Poole,  10  Gray,  104. 

Children  agreed  in  writing  that  sums  of  money  received  by  them 
from  their  father  should  be  treated  as  advancements  in  the  settlement 
of  his  estate,  the  agreement  having  been  made  in  the  lifetime  of  the 


DESCENT   AND   DISTRIBUTION.  —  ADVANCEMENTS.        363 

ments,^  unless  a  different  provision  is  made  in  the  will,  it 
being  deemed  that  the  testator  graduated  the  amount  of 
his  legacies  with  reference  to  them ;  but  the  execution  of 
a  will  which  is  afterwards  revoked  cannot  operate  as  a 
merger.2 

VALUE   OP   ADVANCEMENTS. 

The  statute  prescribes  the  manner  in  which  the  value 
of  advancements  shall  be  ascertained.  "  If  the  value  of 
an  advancement  is  expressed  in  the  conveyance,  in  the 
charge  thereof  made  by  the  intestate,  or  in  the  acknowl- 
edgment by  the  party  receiving  it,  such  value  shall  be 
adopted  in  the  division  and  distribution  of  the  estate  ; 
otherwise  it  shall  be  determined  according  to  the  value 
when  the  property  was  given."  ^ 

THE  widow's  share   WHEN  ADVANCEMENTS  HAVE  BEEN  MADE. 

The  widow  is  entitled  only  to  her  share  in  the  residue 
after  deducting  the  value  of  the  advancement.* 

distribution   WHEN    ADVANCEMENTS    HAVE    BEEN  MADE. 

To  ascertain  the  share  to  which  each  heir  is  entitled,  in 
a  case  where  advancements  have  been  made  :  first,  if  there 
is  a  widow,  deduct  from  the  sum  to  be  distributed  one- 
third  for  her  share  ;  to  the  remainder  add  the  advance- 
father,  and  without  his  knowledge.  Held,  that  the  agreement  was 
not  sufficient  to  establish  an  advancement.  Fitts  v.  Morse,  103  Mass. 
164.  And  see  Bacon  v.  Gassett,  13  Allen,  334 ;  Cummings  v.  Bram- 
hall,  120  Mass.  553. 

1  Jones  V.  Richardson,  5  Met.  247 ;  Jaques  v.  Swasey,  153  JNIass.  596. 

2  Hartwell  v.  Rice,  1  Gray,  587. 

3  R.  L.  c.  140,  §  7.  *  Ibid.  §  4. 


364       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

mcnt  of  each  heir  who  has  received  less  thayi  a  full  shared 
and  divide  tlie  sum  by  the  number  of  such  heirs.  The 
quotient  will  be  the  amount  of  a  full  share  of  the  estate. 
Each  heir  who  has  had  no  advancement  will  be  entitled  to 
a  full  share,  and  each  of  the  others  to  a  full  share  less  the 
amount  of  his  advancement.  Thus,  suppose  the  adminis- 
trator's final  account  shows  a  balance  in  his  hands  of 
$9,000 ;  that  the  intestate  left  a  widow,  four  children, 
A,  B,  C,  and  D,  and  two  grandchildren,  sons  of  E,  a 
deceased  son  of  the  intestate,  and  that  A  has  been  ad- 
vanced $2,000,  C  $1,000,  D  $800,  and  E  $400:  — 

Amount  to  be  distributed $9,000 

Deduct  widow's  share,  one-third 3,000 

$6,000 

Add  A's  advancement        2,000 

«     C's  "  1,000 

«     D's  «  800 

«     E's  "  400 

There  being  five  shares 5)10,200 

Amount  of  a  full  share $2,040 

A  will  take        40 

B,  having  had  no  advancement,  will  take  a  full 

share  2,040 

C  will  take       1,040 

D     "      " 1,240 

The  two  grandsons  together  will  take 1,640 

$6,000 

^  To  find  whether  either  of  the  heirs  has  received  more  than  a  full 
share,  add  all  the  advancements  to  the  remainder,  and  divide  the 
amount  by  the  number  of  all  the  heirs ;  if  the  quotient  be  less  than 
the  advancement  made  to  any  heir,  such  heir  and  the  amount  of  his 
advancement  must  be  altogether  omitted  in  the  computation. 


PAYMENT   OF   DISTRIBUTIVE    SHARES.  365 

PERPETUATION     OP     EVIDENCE       OP      PAYMENTS     UNDER      THE 
DECREE   OP   DISTRIBUTION.  —  DISCHARGE   OF    EXECUTOR,   ETC. 

The  decree  of  distribution  contains  the  names  of  all  the 
persons  entitled  to  share  in  the  personal  estate  of  the 
deceased,  and  specifies  the  amount  to  which  each  is 
entitled.  The  administrator  is  directed  to  give  written 
notice,  by  mail  or  otherwise,  to  each  of  the  persons  named 
in  the  decree  of  the  amount  due  him  or  her,  and  if  any 
sum  remains  for  six  months  unclaimed,  the  executor, 
administrator,  guardian,  or  trustee,  who  was  ordered  to 
pay  the  same,  may  deposit  it  in  a  savings-bank  or  other 
like  institution,  or  invest  it  in  bank  stocks  or  other  stocks, 
as  the  probate  court  may  direct,  to  accumulate  for  the 
benefit  of  the  person  entitled  thereto.  The  deposit  or 
investment  is  made  in  the  name  of  the  judge  of  the  pro- 
bate court  for  the  time  being,  and  subject  to  the  order  of 
the  judge  and  his  successors  in  office.  The  person  who 
makes  such  deposit  or  investment  is  required  to  file  in 
the  probate  court  a  memorandum  thereof,  with  the 
original  certificates,  deposit  book  of  the  bank,  or  other 
evidences  of  title  thereto,  which  shall  be  allowed  as  a 
sufficient  voucher  for  such  payment.  When  the  person 
entitled  to  the  money  deposited  or  invested  satisfies  the 
judge  of  his  right  to  receive  it,  the  judge  shall  cause  it 
to  be  paid  over  and  transferred  to  him.^ 

1  R.  L.  c.  150,  §  23. 

The  limitation  of  the  amount  any  one  person  can  deposit  in  a  sav- 
ings-bank and  receive  interest  thereon  does  not  apply  to  such  deposits. 
R.  L.  c.  113,  §  25, 

The  interest  of  a  distributee  is  equitable  only  in  money  ordered  by 
the  probate  court  to  be  paid  to  him,  and  upon  his  refusal  to  receive  it, 
deposited  prematurely  by  the  administrator  in  a  trust  company,  which 
in  its  certificate  of  deposit  acknowledges  the  receipt  of  the  money  for 


366       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

When  an  executor,  administrator,  guardian,  or  trustee 
has  paid  or  delivered  to  the  persons  entitled  thereto  the 
money  or  other  property  in  his  hands,  as  required  by  a 
decree  of  the  probate  court,  he  may  perpetuate  the  evi- 
dence thereof  by  presenting  to  the  probate  court,  within 
one  year  after  the  decree  is  made,  an  account  of  such  pay- 
ments or  the  delivery  of  such  property ;  which  being 
proved  to  the  satisfaction  of  the  court,  and  verified  by  the 
oath  of  the  accountant,  shall  be  allowed  as  his  final  dis- 
charge. Such  discharge  will  forever  exonerate  the  ac- 
countant and  his  sureties  from  all  liability  under  the 
decree,  unless  his  account  is  impeached  for  fraud  or 
manifest  error.^ 

The  administrator  may  conveniently  render  his  account 
of  payments  and  deposits  made  under  a  decree  of  distri- 
bution by  returning  to  the  court  the  original  decree,  with 
the  receipts  of  the  several  distributees  and  certificates  of 
deposit  or  deposit  books,  and  his  own  certificate  of  the 
fact  that  the  terms  of  the  order  have  been  complied  with. 
In  a  majority  of  cases,  the  administrator  is  practically 
safe  in  taking  receipts  from  the  persons  to  whom  he 
makes  payments,  without  rendering  a  further  account ; 
but  it  is  only  by  rendering  such  an  account  that  he  can 
obtain  a  formal  discharge  from  liability  under  the  decree. 

When  the  person  entitled  to  a  sum  of  money  deposited 
in  a  savings-bank  by  the  administrator  under  a  decree  of 
distribution  satisfies  the  judge  of  his  right  to  receive  the 
same,  the  judge  will  cause  it   to  be   paid  over  to  him. 

the  distributee  and  promises  to  pay  the  amount  to  the  judge  of  pro- 
bate or  his  assigns  ;  and  the  fund  so  deposited  cannot  be  reached  by 
trustee  process  as  the  property  of  the  distributee.  Chase  v.  Thomp- 
son, 153  Mass.  14:. 

»  R.  L.  c.  150,  §  20 ;  Browne  i;.  Doolittle,  151  Mass.  596. 


DEPOSIT   OF   UNCLAIMED   DISTRIBUTIVE   SHARES.         3G7 

The  person  so  entitled  to  the  money  should  make  a  peti- 
tion in  writing  to  the  court  showing  the  grounds  of  his 
claim,  and,  if  the  money  is  ordered  to  be  paid  to  him, 
should  procure  an  attested  copy  of  the  order  for  presenta- 
tion at  the  bank.i 

FINAL    DISTRIBUTION     OF     SUMS     OF     MONEY     DEPOSITED     OR 
INVESTED   BY   ORDER   OF   PROBATE   COURTS. 

"  The  probate  court  may,  upon  the  petition  of  any  person 
interested  and  after  public  notice,  order  all  money  or  the 
proceeds  thereof  deposited  or  invested  by  its  authority  and 
which  shall  have  remained  unclaimed  for  a  period  of  twenty 
years  from  the  date  of  such  deposit  or  investment,  to  be 
paid  to  the  residuary  legatee,  if  any,  of  the  testator  to 
whose  estate  the  money  belonged,  or,  if  such  residuary 
legatee  is  dead,  to  his  heirs  who  are  living  at  the  time  of 
such  distribution :  and  if  no  such  residuary  legatee  or  any 
of  his  heirs  be  then  livijig,  or  if  the  deceased  person  died 
intestate,  said  money  and  the  proceeds  thereof  shall  be 
disposed  of  and  distributed  among  the  persons  entitled 
thereto  and  in  the  manner  provided  by  chapter  one  hun- 
dred and  forty.  The  court  shall  first  require  from  the 
person  or  persons  to  whom  such  sums  shall  be  ordered  to 
be  paid,  a  sufficient  bond  of  indemnity  with  two  sufficient 
sureties  to  be  approved  by  the  judge  of  probate,  with  con- 
dition to  repay  to  the  person  or  persons  for  whose  benefit 
such  deposit  or  investment  was  originally  made,  or  to  the 
personal  representatives  of  such  person  or  persons,  all  sums 
paid  over  by  the  order  of  the  court  under  the  provisions  of 
this  section."  ^ 

1  R.  L.  c.  150,  §  23;  Chase  v.  Thompson,  153  Mass.  15. 
«  R.  L.  c.  150,  §  26. 


368       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  provisions  of  section  25  of  chapter  113  of  the  Re- 
vised Laws,  limiting  the  amount  of  deposits  which  a  sav- 
ings-bank or  institution  for  savings  can  receive  from  one 
person  to  one  thousand  dollars,  and  limiting  the  sum  on 
which  interest  may  be  allowed  to  sixteen  hundred  dollars 
(made  up  of  the  principal  of  one  thousand  dollars  and  ac- 
cumulated interest  thereon),  do  not  apply  to  deposits  made 
in  the  name  of  a  judge  of  probate  or  by  order  of  court.  ^ 

"  The  probate  court,  court  of  insolvency,  or  other  court, 
respectively,  shall,  upon  the  application  of  any  person 
interested  or  of  the  attorney-general,  and  after  public 
notice,  order  and  decree  that  all  sums  of  money  heretofore 
or  hereafter  deposited  with  such  corporation  "  (a  savings- 
bank  or  institution  for  savings),  "  by  authority  of  any  of 
said  courts  or  of  a  judge  thereof,  and  which  shall  have 
remained  unclaimed  for  a  period  of  more  than  five  years 
from  the  date  of  such  deposit,  with  the  increase  and  pro- 
ceeds thereof,  to  be  paid  to  the  treasurer  and  receiver- 
general,  to  be  held  and  used  by  him  according  to  law, 
subject  for  fifteen  years  only  to  be  repaid  to  the  person 
having  and  establishing  a  lawful  right  thereto,  with  inter- 
est at  the  rate  of  three  per  cent  per  annum  from  the  time 
it  is  so  paid  to  said  treasurer  to  the  time  it  is  paid  over  by 
him  to  such  person."  ^ 

BALANCES   IN  THE   HANDS    OF   PUBLIC    ADMINISTRATORS. 

"  When  an  estate  has  been  fully  administered  by  a  pub- 
lic administrator,  he  shall  deposit  the  balance  of  such 
estate  remaining  in  his  hands  with  the  treasurer  and  re- 
ceiver-general, who  shall  receive  and  hold  it  for  the  benefit 
of  those  who  may  have  lawful  claims  thereon."  ^ 

1  R.  L.  c.  113,  §  25.  2  Ibid.  §  55. 

'  R.  L.  c.  138,  §  12.    The  probate  court  has  authority  to  order  a 


DESCENT  AND   DISTRIBUTION.  —  PUBLIC  ADMINISTRATORS.     369 

''  The  probate  courts  shall  require  every  public  admin- 
istrator in  their  respective  counties  to  render  an  account 
of  his  proceedings  under  any  letters  of  administration  at 
least  once  in  each  year  until  the  trust  has  been  fulfilled. 
And  when,  upon  a  final  settlement  of  an  estate,  it  appears 
that  moneys  remain  in  the  hands  of  such  administratoj', 
which  by  law  should  have  been  deposited  with  the  treas- 
urer of  the  commonwealth,  the  court  shall  certify  that  fact 
and  a  statement  of  the  amount  so  withheld  to  said  treas- 
urer, who,  unless  such  deposit  is  made  within  one  month 
after  the  receipt  of  such  notice,  shall  cause  the  bond  of 
the  administrator  to  be  prosecuted  for  the  recovery  of  such 
moneys." 

"  If,  at  any  time  within  six  years  after  a  public  admin- 
istrator has  made  deposit  with  the  treasurer  of  the  balance 
of  an  estate  remaining  in  his  hands,  any  person  applies  to 
the  probate  court  which  granted  letters  of  administration 
on  said  estate  and  makes  it  appear  that  he  is  legally 
entitled  by  the  will  of  the  deceased  or  otherwise  to  the 
administration  of  said  estate,  the  court  shall  grant  admin- 
istration thereof,  or,  upon  probate  of  such  will,  shall 
grant  letters  testamentary  to  such  applicant,  or  at  his 
request  to  some  other  suitable  person  ;  but  before  grant- 
ing such  administration,  the  court  shall  order  personal 
notice  of  the  application  to  be  served,  at  least  fourteen 
days  before  the  heariug,  upon  a  public  administrator 
of  the  county,  who  shall  appear  in  behalf  of  the  com- 
monwealth." 

"  After  the  expiration  of  thirty  days  from  the  appoint- 
ment of  an  executor  or  administrator  as  provided  in  the 

public  administrator  to  distribute  the  balance  of  an  estate  among 
the  next  of  kin  of  the  intestate.  Parker  v.  Kiickeua,  7  Allen, 
609. 

24 


370       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

preceding  section,  if  no  appeal  is  claimed  by  any  person 
interested,  the  treasurer  shall  pay  over  to  such  executor 
or  administrator  all  money  deposited  in  the  treasury  to 
the  credit  of  such  estate,  to  be  administered  in  like  manner 
as  the  estates  of  other  deceased  persons." 

"  Upon  the  death,  resignation,  or  removal  of  a  public 
administrator,  the  probate  court  shall  issue  a  warrant  to 
some  other  public  administrator  in  the  same  county,  on 
his  application  therefor,  requiring  him  to  examine  the 
accounts  of  such  late  public  administrator  touching  the 
estates  on  which  he  has  taken  out  letters  of  administration, 
and  to  return  into  the  probate  court  a  statement  of  all  of 
such  estates  that  are  not  fully  administered,  and  of  the 
balance  of  each  estate  that  remained  in  the  hands  of  such 
public  administrator  at  the  time  of  his  death,  resignation, 
or  removal.  And  thereupon  the  court  shall  issue  to  the 
public  administrator  making  the  return,  upon  his  giving 
the  requisite  bond,  letters  of  administration  upon  such  of 
said  estates  as  are  not  already  administered,  although  the 
personal  estate  remaining  may  not  amount  to  twenty 
dollars." 

"  When  a  public  administrator  neglects  to  return  an 
inventory,  to  settle  an  accouut,  or  to  perform  any  other 
duty  incumbent  on  him  in  relation  to  an  estate,  and  there 
appears  to  be  no  heir  entitled  to  such  estate,  the  district- 
attorney  for  the  district  within  which  the  administrator 
received  his  letters  shall,  in  behalf  of  the  commonwealth, 
prosecute  all  suits  and  do  all  acts  necessary  and  proper 
to  insure  a  prompt  and  faithful  administration  of  the 
estate,  and  the  payment  of  the  proceeds  thereof  into  the 
treasury  of  the  commonwealth  ;  and  if  no  heir  has,  within 
two  years  after  the  granting  of  letters  of  administration, 
appeared  and   made   claim   in   the  probate  court  for  his 


DESCENT  AND  DISTRIBUTION. — PUBLIC  ADMINISTRATORS.      371 

interest  in  such  estate,  it  shall  be  presumed  that  there  is 
no  such  heir,  and  the  burden  of  proving  his  existence 
shall  be  upon  the  public  administrator." 

"  When  the  total  property  of  an  intestate  which  has 
come  into  the  possession  or  control  of  a  public  adminis- 
trator is  of  a  value  less  than  twenty  dollars  (unless  the 
same  is  the  balance  of  an  estate  received  from  a  prior 
public  administrator),  he  shall  forthwith  reduce  all  such 
property  into  money,  not  taking  administration  thereon, 
and  shall  deposit  such  money,  first  deducting  his  reason- 
able expenses  and  charges,  with  the  treasurer  of  the  com- 
monwealth, who  shall  receive  and  hold  it  for  the  benefit 
of  any  persons  who  may  have  legal  claims  thereon.  Such 
claims  may  be  presented  to  the  auditor  of  the  common- 
wealth within  one  year  from  such  payment  to  the  treasurer 
and  receiver-general,  and  the  auditor  shall  examine  such 
claims  and  allow  such  as  may  be  proved  to  his  satisfaction, 
and  upon  the  expiration  of  the  year  shall  forthwith  certify 
the  same  to  the  governor  and  council  for  payment  of  the 
whole  of  the  claims,  or  such  proportion  thereof  as  the  funds 
will  allow." 

"  A  public  administrator,  upon  making  such  deposit, 
shall  file  with  the  treasurer  and  receiver-general  a  true 
and  particular  account,  under  oath,  of  all  his  dealings, 
receipts,  payments,  and  charges  on  account  of  the  prop- 
erty from  which  the  money  so  deposited  proceeds,  includ- 
ing the  name  of  the  intestate,  if  known  to  him,  and  the 
treasurer  and  receiver-general  shall  thereupon  deliver  to 
him  a  receipt  for  such  money.  Such  deposit  shall  exempt 
the  public  administrator  making  it  from  all  responsibility 
far  or  on  account  of  the  money  so  deposited."  ^ 

1  R.  L.  c.  138,  §§  13-19. 


372  PROCEEDINGS   IN   THE   PROBATE    COURTS, 

PAYMENTS   TO  GUARDIANS  AND   TRUSTEES   APPOINTED  IN  OTHER 

STATES. 

"  A  guardian  appointed  within  the  commonwealth,  whose 
ward  removes  from  or  resides  out  of  the  commonwealth, 
may  sell  the  real  property  of  his  ward,  and  transfer  and 
pay  over  the  whole  or  any  part  of  the  proceeds  and  the 
whole  or  any  part  of  the  ward's  personal  property  to  a 
guardian,  trustee,  or  committee  appointed  by  competent 
authority  in  the  state  or  country  in  which  the  ward  re- 
sides, upon  such  terms  and  in  such  manner  as  the  probate 
court  by  which  he  was  appointed  may,  after  notice  to  all 
parties  interested,  decree  upon  petition  filed  therefor,"  ^ 

"  An  executor,  administrator,  or  trustee,  who  has  in  his 
hands  personal  property  belonging  to  a  person  under  guar- 
dianship residing  out  of  this  commonwealth  and  having 
no  guardian  appointed  therein,  may  pay  over  and  transfer 
the  whole  or  any  part  of  such  personal  property  to  a 
guardian,  trustee,  or  committee  appointed  by  competent 
authority  in  the  state  or  country  in  which  such  person 
resides,  upon  the  terms  and  in  the  manner  required  by  the 
provisions  of  section  twenty-five  of  chapter  one  hundred 
and  forty-six."  ^ 

"  If  all  living  parties  who  are  interested  as  beneficiaries 
in  a  trust  created  by  will  which  is  proved  and  allowed  in 
this  commonwealth  reside  out  of  this  commonwealth,  the 
probate  court  which  has  jurisdiction  of  the  trust  may,  upon 
petition  of  the  parties  in  interest,  or  of  the  executor,  ad- 
ministrator, or  trustee,  if  it  considers  it  just  and  expedient, 
authorize  the  executor,  administrator,  or  trustee  to  pay 
over  the  fund  to  a  trustee  appointed  by  the  proper  court 

1  R.  L.  c,  146,  §  25;  Talbot  v.  Chamberlain,  149  Mass.  61. 

2  R.  L,  c.  145,  §  36. 


PAYMENTS   TO   FOREIGN    GUARDIANS,    ETC.  373 

in  any  other  state  or  country,  if  all  the  beneficiaries  who 
are  living  and  the  executor,  administrator,  or  trustee 
signify  their  consent,  and  the  court  is  satisfied  that  the 
laws  of  such  other  state  or  country  secure  the  due  per- 
formance of  said  trust ;  and  upon  such  payment,  shown 
to  the  satisfaction  of  said  probate  court,  the  executor, 
administrator,  or  trustee  appointed  here  may  be  discharged 
from  further  responsibility  by  decree  of  said  court." 

"If  there  are  contingent  interests  in  such  trust  fund, 
whether  the  persons  who  may  be  entitled  thereto  are  in 
being  or  not,  or  if  any  of  the  beneficiaries  are  minors, 
the  court,  before  making  an  order  or  decree,  shall  cause 
such  interests  and  minors  to  be  properly  represented  by 
guardians  ad  litem  or  otherwise  at  its  discretion."  ^ 

1  R.  L.  c.  150,  §§  27,  28. 


CHAPTER  XVII. 

PAETITION  OF  LANDS  IN  THE  PROBATE  COURT. 

The  probate  court  in  which  the  estate  of  a  deceased 
person  is  in  course  of  settlement  or  has  been  settled  may, 
upon  petition  of  any  party  interested,  make  partition  of 
all  the  land  of  such  deceased  person  lying  within  the 
commonwealth,  among  his  heirs  or  devisees  and  all  per- 
sons holding  under  them  by  conveyance  or  otherwise; 
and  the  probate  court  has  concurrent  jurisdiction  with  the 
superior  court  of  petitions  for  partition  of  lands  held  by 
joint  tenants  or  tenants  in  common,  if  the  shares  do  not 
appear  to  be  in  dispute  or  uncertain.^ 

1  R.  L.  c.  184,  §§  34,  31.  Partition  is  a  matter  of  right,  and  neither 
mere  inconvenience  nor  the  fact  that  the  land  is  subject  to  a  right  of 
way  is  sufficient  to  prevent  it  Crocker  v.  Cotting,  170  Mass.  68,  70. 
No  man  can  be  held  to  a  tenancy  in  common  of  land  without  his  own 
consent.     O'Brien  v.  Mahoney,  179  Mass.  200. 

Partition  may  be  made  in  the  probate  court  between  heirs  even 
where  the  estate  of  the  ancestor  is  in  course  of  settlement  and  where 
there  is  a  pending  claim  of  one  of  the  heirs  against  the  estate  which, 
if  allowed  in  full,  is  greater  than  the  inventoried  value  of  the  real  and 
personal  property  of  the  estate.     O'Brien  v.  Mahoney,  supra. 

Cases  ichere  Petition  for  Partition  can  be  maintained. 

Persons  entitled  to  life  estates  in  land  as  tenants  in  common  can 
have  partition,  but  such  partition  will  not  affect  rights  of  I'emainder- 
men.     Judkins  v.  Judkins,  109  Mass.  181. 

The  owner  of  an  undivided  share  in  land  may  maintain  a  petition 
for  partition,  although  persons  not  ascertained  are  entitled  to  a  con- 


PARTITION   OF   LANDS.  375 

As  early  as  1693,  the  provincial  legislature  of  Massa- 
chusetts provided   that  "  all   persons   holding  any  lands, 

tingent  remainder  in  otiier  shares,  and  although  petitioner's  share  is 
subject  to  an  overdue  mortgage.     Taylor  v.  Blake,  109  Mass.  513. 

Property  subject  to  easements  may  be  partitioned.  Weston  v. 
Foster,  7  Met.  297;  Crocker  v.  Cotting,  170  Mass.  68. 

Under  statutes  giving  to  a  widow  an  absolute  title  in  fee  simple  to 
an  undivided  part  of  the  lands  of  which  her  husband  died  seized,  she 
is  a  tenant  in  common  with  the  other  heirs  and  entitled  to  partition. 
Sears  v.  Sears,  121  Mass.  267;  Easthara  v.  Barrett,  152  Mass.  56; 
Brownell  *'.  Briggs,  173  Mass.  529,  531. 

A  mortgagor  not  in  possession,  under  a  mortgage  of  an  undivided 
half  of  a  parcel  of  land,  may  maintain  a  petition  for  partition.  Rich 
V.  Lord,  18  Pick.  322. 

Cases  where  Petition  for  Partition  cannot  be  maintained. 

Partition  cannot  be  had  on  petition  of  all  of  the  co-tenants.  Swett 
V.  Bussey,  7  Mass.  503 ;  Winthrop  v.  Minot,  9  Cush.  405. 

Proceedings  for  partition  cannot  be  instituted  in  the  probate  court 
pending  a  petition  for  partition  begun  by  some  of  the  heirs  and  an 
action  by  the  widow  of  the  intestate  for  the  recovery  of  her  dower  in 
the  supreme  court.  Stearns  v.  Stearns,  16  Mass.  167  ;  Miller  v.  County 
Commissioners,  119  Mass.  485.  [St.  1892,  c.  169,  provided  that  the 
supreme  judicial  court  should  no  longer  have  original  jurisdiction  of 
petitions  for  partition,  writs  of  entry,  or  other  real  actions.] 

Buildings  owned  in  common  but  standing  on  land  to  which  the 
petitioners  do  not  claim  title,  are  not  the  subject  of  partition.  Rice  v. 
Freeland,  12  Cush.  170. 

A  tenant  in  common  of  two  parcels  of  land  in  different  proportions, 
of  one  parcel  as  co-tenant  with  one  person  and  of  the  other  as  co-tenant 
with  the  same  person  and  others,  cannot  have  judgment  for  partition 
of  both  parcels  on  one  petition.     Hunnewell  v.  Taylor,  3  Gray,  111. 

A  judgment  creditor  who  has  levied  his  execution  on  real  estate 
held  by  liis  debtor  in  common  with  third  persons,  cannot  maintain  a 
petition  for  partition  until  after  the  expiration  of  the  year  within 
which  the  debtor  may  redeem.     Pheljis  v.  Palmer,  15  Gray,  499. 

A  partition  cannot  be  granted,  although  all  the  parties  in  interest 
desire  it,  where  by  a  codicil  to  a  will  the  legal  estate  in  the  lands  is 
vested  in  the  executors  with  authority,  in  order  to  avoid  the  expense 
and  labor  of  a  partition  among  the  testator's  devisees,  to  sell  the  real 
estate  and  to  divide  the  net  proceeds  of  sales  among  the  devisees 


376       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

tenements,  or  hereditaments  as  co  parceners,  joint  tenants, 
or  tenants  in  common,  may  be  compelled  by  writ  of  parti- 
tion at  common  law  to  divide  the  same," 

Writs  of  partition,  recognized  by  Pub.  Sts.  c.  178,  §  1, 
although  abolished  in  England  in  1834  and  superseded  in 
Massachusetts  in  practice  by  petitions  for  partition,  could 
still  be  used  in  this  commonwealth  until  they  were  abol- 
ished by  Rev.  Laws,  c.  184,  §  1.  O'Brien  v.  Mahoney, 
179  Mass.  200. 

The  proceedings  for  partition  among  heirs  and  devisees 
and  all  persons  holding  under  them,  must  be  in  the  pro- 
bate court  of  the  same  county  in  which  letters  testamen- 
tary or  of  administration  were  regularly  granted.  No 
other  probate  court  can  have  jurisdiction ;  and  if  the 
grant  of  administration  was  void  for  want  of  jurisdiction, 
the  court  in  which  such  void  administration  was  granted 
has  no  power  to  order  partition.^ 

No  partition  shall  be  made  by  the  probate  court  if  it 
finds  that  the  shares  of  the  respective  parties  are  in  dis- 
pute, or  are  uncertain  by  reason  of  depending  upon  the 
construction  or  effect  of  a  devise  or  other  conveyance,  or 
upon  other  questions  which  the  court  considers  should  be 
determined  by  another  tribunal.^  When  it  appears,  by 
adverse  claim  or  otherwise,  that  the  shares  are  in  dispute 

according  to  the  respective  interests  devised  to  them  in  the  original 
^will.     Gerard  v.  Buckley,  137  Mass.  475. 

A  petition  for  partition  of  land  cannot  be  maintained  if  the  mort- 
gagee of  the  land  has  entered  for  condition  broken  and  is  in  actual 
possession  of  the  premises  at  the  time  of  the  filing  of  the  petition. 
O'Brien  v.  Bailey,  163  Mass.  325. 

For  a  case  where  a  contingent  life  estate  prevented  partition,  see 
Faxon  v.  Faxon,  174  Mass.  509. 

1  Sigourney  v.  Sibley,  21  Pick.  101. 

«  R.  L.  c.  184,  §  43. 


PARTITION   OF   LANDS.  377 

or  uncertain,  the  court  may  order  the  case  to  be  removed 
to  the  superior  court,  and  the  statute  provides  that  it  shall 
be  so  removed  at  the  request  of  any  party  in  interest.^ 
But  if  the  court  has  properly  assumed  jurisdiction  and 
issued  a  warrant  to  commissioners,  it  may  retain  its  juris- 
diction, although  it  subsequently  appears  that  the  shares 
or  proportions  of  the  parties  are  uncertain.^ 

Partitions  may  be  made  notwithstanding  the  existence 
of  a  lease  of  the  whole  or  a  part  of  the  estate  to  be  divided  ; 
but  the  partition  cannot  prejudice  the  right  of  a  lessee. 
Partitions  may  be  made  notwithstanding  any  of  the  ten- 
ants in  common  may  be,  alone  or  jointly  with  others, 
trustee,  attorney,  or  guardian  of  any  other  tenant.^  No 
partition  shall  be  defeated  by  the  payment  by  any  party 
to  it  of  any  mortgage,  lien,  tax,  or  other  incumbrance 
when  the  other  parties  have  a  right  to  redeem.  But  in 
such  case  the  interlocutory  decree  shall  determine  the 
terms  of  redemption  from  a  contribution  on  account  of 
such  payment.  Final  judgment  for  partition  shall  not  be 
entered  till  the  terms  of  the  interlocutory  judgment  have 
been  complied  with.* 

When  an  estate  or  right  of  homestead  exists  in  property 
in  which  other  parties  have  an  interest,  the  party  entitled 
to  the  homestead,  or  any  other  party  interested,  may  upon 
petition  have  partition  thereof  like  tenants  in  common.^ 

^  R.  L.  c.  184,  §  32.  It  is  the  duty  of  the  probate  court  to  make  the 
partition  if  there  is  no  real  uncertainty  as  to  the  shares  or  proportions 
of  the  parties,  although  one  of  the  parties  may  insist  that  there  is  a 
dispute  or  controversy  concerning  them.  Dearborn  v.  Preston,  7  Allen, 
192;  Elliot  v.  Elliot,  137  Mass.  116;  Eastham  v.  Barrett,  152  Mass. 
57;  Lowd  v.  Brigham,  154  Mass.  108. 

2  R.  L.  c.  184,  §  46 ;  Potter  v.  Hazard,  11  Allen,  187. 

8  R.  L.  c.  184,  §§  50,  51 ;  Willard  v.  Willard,  145  U.  S.  116. 

4  R.  L.  c.  184,  §§  12,  22.  «  R.  L.  c.  131,  §  11. 


378       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

When  a  widow  is  entitled  to  an  undivided  interest  in 
lands  owned  by  her  husband  as  tenant  in  common,  the 
probate  court  may  empower  commissioners  to  make  parti- 
tion of  the  lands  so  owned  in  common,  and  then  to  assign 
to  the  widow  her  interest  in  the  portion  set  off  to  the  estate 
of  her  husband.^ 

The  wife  of  a  man  who  is  under  guardianship  may  join 
with  the  guardian,  and  the  guardian  of  a  woman  may  join 
with  her  husband,  in  making  partition  of  her  real  estate, 
held  in  joint  tenancy  or  in  common,  and  they  may  make 
any  release  or  other  conveyance  necessary  or  proper  for 
that  purpose,  in  like  manner  as  the  parties  might  do  if 
neither  of  them  was  under  legal  disability.^ 

The  statute  requires  that  the  "partition,  when  made  on 
the  application  of  an  heir,  shall  be  made  of  all  the  estate 
that  descended  from  the  ancestor,  and  which  any  party 
interested,  whether  the  applicant  or  others,  requires  to 
have  included  in  the  partition ;  and  when  made  on  the 
application  of  a  devisee,  it  shall  be  made  of  all  the  estate 
held  by  the  applicant  jointly  or  in  common  with  others 
holding  under  the  testator,  which  he  or  any  other  devisee 
requires  to  have  included.  The  same  rule  applies  when 
the  application  is  made  by  any  person  holding  under  an 
heir  or  devisee.^ 

Upon  such  partition  the  court  may  set  off  to  the  peti- 
tioner his  share  and  leave  the  residue  of  the  land  for  the 
persons  entitled  thereto,  subject  to  a  future  partition  ;  or 
it  may  set  off  to  the  persons  entitled  to  said  residue  their 
respective  shares  therein.     If  two  or  more  of  such  persons 

1  R.  L.  c.  132,  §  11;  Elliot  v.  Elliot,  137  Mass.  116;  Eastham  v. 
Barrett,  152  Mass.  57. 

2  R.  L.  c.  153,  §  18.     See  also  St.  1902,  c.  478. 

8  Arms  V.  Lyman,  6  Pick.  210;  R.  L.  c.  184,  §  39. 


PARTITION    OF   LANDS.  379 

consent  to  hold  their  shares  undivided,  such  shares  may 
be  so  set  off.^ 

When  a  part  of  the  real  estate  of  the  deceased  lies  in 
common  and  undivided  with  that  of  another  person,  the 
court  may,  before  making  partition  among  those  claiming 
under  the  deceased,  cause  the  real  estate  of  the  deceased 
to  be  divided  and  set  off  from  the  part  held  by  such 
co-ten  ant.2 

A  widow's  right  to  dower  is  no  bar  to  a  partition 
among  tenants  in  common.^ 

If  a  person  to  or  for  whom  a  share  has  been  assigned  is 
evicted  by  a  person  who  at  the  time  of  the  partition  had  a 
title  older  and  better  than  those  who  were  parties  to  the 
action  for  partition,  the  person  so  evicted  may  have  a 
new  partition  of  the  residue,  as  if  partition  had  not  been 
made.* 

If,  after  a  first  partition,  improvements  have  been  made 
on  a  part  of  the  land  which  by  a  new  partition  is  taken 
from  the  share  of  the  party  who  made  the  improvements, 
he  shall  be  entitled  to  compensation  therefor,  which  shall 
be  determined  and  awarded  by  the  commissioners  and 
paid  by  the  party  to  whom  such  part  of  the  land  shall 
be  assigned  on  the  new  partition,  and  the  court  may  issue 
an  execution  therefor. 

1  R.  L.  c.  184,  §  40  ;  Gordon  v.  Pearson,  1  Mass.  328  ;  Thayer  v. 
Thayer,  7  Pick.  209. 

The  survivor  takes  a  vested  inheritable  fee  defined  by  its  value 
until  duly  set  out  or  assigned,  which  descends  like  other  real  estate. 
Eastham  v.  Barrett,  152  Mass.  56. 

Estates  in  remainder  are  not  within  the  purview  of  these  statutes. 
Watson  ('.  Watson,  150  Mass.  85. 

2  R.  L.  c.  184,  §  44.  8  Ward  v.  Gardner,  112  Mass.  42. 

*  R.  L.  c.  184,  §  29.  The  provisions  of  this  section  apply  also  to 
partitions  made  in  the  probate  court  under  R.  L.  c.  184,  §  31.  O'Brien 
V.  Mahoney,  179  Mass.  200. 


380       PROCEEDIXGS  IN  THE  PROBATE  COURTS. 

A  person  who  holds  land  under  a  partition  made  under 
the  provisions  of  chapter  184  of  the  Revised  Laws  shall, 
in  case  of  an  eviction,  be  entitled  to  compensation  for  im- 
provements made  thereon.^ 

PRELIMINARY  PROCEEDINGS  IN  PROBATE  COURT. 

Proceedings  for  partition  in  the  probate  court  are  com- 
menced by  petition  signed  by  one  or  more  of  the  parties 
interested  in  the  real  estate.  The  petitioner  should  state 
the  proportion  which  his  share  bears  to  the  whole  estate, 
and  whether  he  claims  as  heir,  devisee,  or  tenant  in  com- 
mon, or  otherwise.  The  names  and  residences  of  all  the 
other  parties  interested  should  be  stated,  and  if  any  of 
them  are  married  women,  the  names  of  their  husbands ; 
if  any  are  minors,  the  fact  should  appear,  and  the  names 
and  residences  of  the  guardians,  if  any,  should  be  stated. 

A  petition  for  partition  of  all  the  real  estate  of  a 
person  whose  estate  is  in  course  of  settlement  in  the 
probate  court,  need  not  contain  a  description  of  the 
premises  to  be  divided,  except  where  a  part  of  the  real 
estate  lies  in  common  and  undivided  with  that  of  another 
person.2  If  any  part  of  the  land  of  the  deceased  lies  in 
common  with  that  of  another  person,  a  description  of 
such  land  should  be  annexed  to  the  petition,  and  the 
share  of  the  deceased  therein,  and  the  names  of  the  co- 
tenants  should  be  stated.  If  there  are  any  advancements 
made  by  the  deceased  to  be  considered  in  making  the  par- 
tition, the  several  sums  advanced  and  the  names  of  the 
persons  who  received  them  should  be  fully  stated.^ 

1  R.  L.  c.  184,  §§  54,  55. 

2  INlarsh  v.  French,  159  Mass.  469. 

^  On  a  petition  for  partition,  if  the  petitioner's  right  to  recover 
depends  upon  the  trial  of  the  issue  whether  his  omission  from  his 


PARTITION    OF   LANDS.  381 

When  a  widow  is  entitled  to  an  undivided  interest  in 
lands  owned  by  her  husband  as  tenant  in  common,  and 
does  not  apply  for  partition  within  one  year  from  the 
decease  of  her  husband,  the  heir  or  devisee  of  the  husband, 
or  any  person  having  an  estate  in  the  lands  subject  to  her 
interest,  may  petition.^ 

A  guardian  may  petition  for  the  partition  of  his  ward's 
real  estate,  except  where  he  has  an  interest  adverse  to 
that  of  the  ward  in  the  estate  to  be  divided.^ 

Notice  of  the  petition  is  required  to  be  given  to  all  the 
parties  interested  to  appear  and  show  cause  against  it. 
The  citation  may  be  issued  by  the  register  of  probate 
on  any  day  when  the  petition  is  filed  in  the  probate  office. 
The  notice  must  be  served  fourteen  days  at  least  before 
the  time  appointed  for  the  hearing  on  the  parties  person- 
ally, if  they  can  be  found  within  the  commonwealth,  and, 
if  not,  it  must  be  published  once  in  each  of  three  successive 
weeks,  before  such  hearing,  in  such  newspaper  or  news- 
papers as  the  court  shall  order.  But  such  notice  may  be 
dispensed  with  when  all  the  parties  in  interest  signify  in 
writing  their  assent  to  the  partition  or  waive  notice.^ 

father's  will  was  intentional,  he  is  entitled  to  open  and  close.  Hurley 
V.  O'Sullivan,  137  Mass.  86. 

A  tenant  in  fee  simple  of  land  subject  to  the  estate  to  which  the 
widow  of  an  intestate  without  issue  is  entitled  in  an  undivided  half 
thereof,  may  maintain  a  petition  for  partition  against  the  widow  as  to 
so  much  of  his  interest  as  he  has  in  possession,  and  the  court  may, 
under  R.  L.  c.  184,  §  47,  order  the  land  to  be  sold.  Allen  v.  Libbey, 
140  Mass.  82. 

A  person  not  named  in  the  petition  to  entitle  himself  to  appearand 
answer,  after  a  trial  upon  the  merits  and  tlie  verdict  of  a  jury,  must 
first  show  that  he  has  some  title  or  interest  in  the  land.  Fales  v, 
Fales,  148  Mass.  42. 

1  R.  L.  c.  132,  §  11.  2  R_  L,  c.  145^  §  27. 

3  R.  L.  0.  184,  §  35 ;  R.  L.  c.  162,  §  45. 


382       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  a  part  of  the  land  of  the  deceased  lies  in  common  and 
undivided  with  that  of  another  person,  the  probate  court 
may,  before  making  partition  among  those  claiming  under 
the  deceased,  cause  the  land  of  the  deceased  to  be  set  off 
from  the  part  held  by  such  co-tenant.  A  notice  of  the 
intended  partition  containing  a  description  of  the  land  to 
be  divided,  with  a  statement  of  the  share  claimed  to 
belong  to  the  estate  of  the  deceased,  and  of  the  time  and 
place  appointed  for  a  hearing,  shall  be  served  by  delivering 
to  the  co-tenant  an  attested  copy,  or  by  leaving  such  copy 
at  the  place  of  his  abode  in  this  commonwealth  fourteen 
days  at  least  before  the  time  appointed  for  the  hearing.^ 

All  persons  who  would  be  bound  by  the  partition  are 
entitled  to  notice,  whether  they  have  an  estate  of  inheri- 
tance, for  life  or  years,  in  possession,  remainder,  or  rever- 
sion, and  whether  vested  or  contingent,  and  if  the  petitioner 
holds  an  estate  for  life  or  years,  the  person  entitled  to  the 
remainder  or  reversion  is  entitled  to  notice  as  one  of 
the  parties  interested.  In  cases  in  which  remainders  or 
estates  are  devised  or  limited  to,  or  in  trust  for,  persons 
not  in  being  at  the  time  of  the  application  for  partition, 
notice  must  be  given  to  the  persons  who  may  be  parents 
of  such  persons,  setting  forth  the  origin  and  nature  of 
the  remainder  or  interest  so  devised  or  limited.  The 
notice  may  be  given  personally  or  by  publication,  or  in 
such  other  manner  as  the  court  may  order,  as  provided 
in  sections  5  and  6  of  chapter  184  of  the  Revised  Laws.^ 

At  the  time  named  in  the  order  of  notice,  any  person 
interested  may  appear  and  be  heard  upon  the  petition. 
The  statute  requires  that  the  court  shall  appoint  a  disin- 
terested person  to  act  for  any  heir,  devisee,  or  other  })erson 
interested  in  the  land,  who  is  absent  from  the  common- 

1  R.  L.  c.  184,  §  14.  2  Ibid.  §  52. 


PARTITION   OF  LANDS.  383 

wealth,  ill  all  things  relative  to  the  partition  ;  and  that,  if 
any  infant  or  insane  person  is  interested  in  the  land, 
and  has  no  guardian  within  the  commonwealth,  it  shall 
appoint  a  guardian  ad  litem.^  And  in  cases  in  which 
remainders  or  estates  are  devised  or  limited  to,  or  in  trust 
for,  persons  not  in  heing  at  the  time  of  the  application  for 
partition,  the  court  appoints  a  suitable  person  to  act  as 
the  next  friend  of  such  persons  in  all  proceedings  touching 
the  partition,  the  cost  of  whose  appearance  and  services, 
including  compensation  of  his  counsel  to  be  determined  by 
the  court,  shall  be  paid  by  the  persons  who  apply  for 
partition,  and  execution  may  be  issued  therefor  in  the 
name  of  the  person  appointed. ^ 

In  cases  where  it  appears  that  any  part  of  the  lands  to 
be  divided  belongs  to  persons  having  different  interests, 
so  that  an  estate  for  life  or  for  a  term  of  years  belongs  to 
one  person,  and  the  remainders  are  devised  or  limited  to 
other  persons,  the  court  may  appoint  a  trustee  to  receive 
and  invest  any  distributive  share  of  the  money  arising  from 
such  partition  to  which  such  persons  may  be  entitled,  the 
annual  income  to  be  paid  over  to  the  person  in  whom  was 
the  estate  for  life  or  term  of  years,  and  the  principal,  after 
the  termination  of  such  estate,  to  the  persons  to  whom 
such  remainders  were  devised  or  limited,  when  they  can  be 
ascertained  and  are  entitled  thereto.^ 

If,  upon  the  hearing,  it  appears  that  the  partition  prayed 
for  should  be  made,  the  court  appoints  three  or  five  disin- 
terested persons  as  commissioners  to  make  the  division. 
If  the  land  to  be  divided  lies  in  different  counties,  the 
judge  may,  if  he  thinks  fit,  issue  a  separate  warrant  and 
appoint  different  commissioners  for  each  county ;  and 
the  partition  in  such  case  is  made  in  each  county  in  like 

1  R.  L.  c.  184,  §  36.  2  Ibid.  §  52.  «  Ibid.  §  49. 


384       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

manner  as  if  there  were  no  other  land  to  be  divided,  or 
the  entire  land  may  be  divided  by  the  same  commission- 
ers.^ The  warrant  states  the  name  of  each  heir  or  devisee, 
and  the  share  of  the  estate  to  which  each  is  entitled.  If 
there  are  any  advancements  made  by  the  deceased  to  be 
considered  in  makinjjj  the  partition,  the  names  of  the 
persons  who  received  the  advancements  and  the  sum 
received  by  each  should  also  be  stated  in  the  warrant  or 
in  a  paper  appended  thereto. 

If  upon  the  death  of  any  of  several  plaintiffs  or  peti- 
tioners in  a  suit  for  partition  the  interest  of  the  deceased 
party  passes  to  the  surviving  plaintiffs  or  petitioners,  or  to 
any  i)erson  admitted  to  join  them  in  the  suit,  it  shall  be 
prosecuted  in  the  manner  provided  respecting  real  actions ; 
but  if  the  interest  of  the  deceased  party  passes  to  a  person 
not  so  admitted  as  a  plaintiff  or  petitioner,  such  person 
may,  by  order  of  the  court,  be  made  a  defendant  or  re- 
spondent, and  the  same  proceedings  may  be  had  against 
him  as  would  have  been  necessary  to  make  him  an  original 
defendant  or  respondent. 

If  upon  the  death  of  any  of  several  defendants  or  re- 
spondents the  interest  of  the  deceased  party  passes  to  the 
surviving  defendants  or  respondents,  the  suit  may  proceed 
against  them  without  any  new  process  ;  but  if  the  interest 
of  the  deceased  party  passes  to  any  other  person,  that 
person  may  be  made  a  defendant  or  respondent  in  the 
manner  prescribed  in  the  preceding  section.^ 

PROCEEDINGS   OF   THE   COMMISSIONERS. 

Before  proceeding  to  make  the  partition,  the  commis- 
sioners   must   make   oath   that   they    will   faithfully   and 

1  R.  L.  c.  184,  §§  37,  38. 

«  R.  L.  c.  171,  §§  14,  15;  Richards  v.  Richards,  136  Mass.  126. 


PARTITION   OF   LANDS.  385 

impartially  execute  their  duties,  and  a  certificate  of  their 
oath  should  be  made  on  the  warrant  by  the  justice  who 
administers  it.^ 

The  commissioners  are  required  to  give  sufficient  notice 
of  the  time  and  place  appointed  by  them  for  making  the 
partition  to  all  persons  interested  who  are  known  and 
are  within  the  state,  and  to  the  agent  of  any  absent  heir 
or  devisee  appointed  by  the  court.  The  notice  should  be 
in  writing  and  signed  by  the  commissioners,  and  served 
upon  each  of  the  persons  interested,  by  giving  him  a  copy 
thereof,  or  leaving  a  copy  at  his  place  of  abode ;  and  a 
return,  stating  the  manner  in  which  the  service  was  made, 
should  be  indorsed  by  the  officer  or  other  person  making 
it,  upon  the  original  notice.  If  the  service  was  made  by  a 
person  other  than  an  officer  qualified  to  serve  civil  process, 
the  return  should  be  accompanied  by  his  affidavit. 

All  the  commissioners  are  required  to  meet  for  the 
performance  of  any  of  their  duties,  but  the  acts  of  a 
majority  of  them  are  valid.^ 

At  the  time  and  place  appointed  for  making  the  parti- 
tion, the  commissioners  proceed  to  appraise  all  the  estate 

1  A  warrant  or  commission  for  the  appraisal  of  an  estate,  for  ex- 
amining the  claims  on  insolvent  estates,  for  the  partition  of  laud,  or 
for  tlie  assignment  of  dower  or  curtesy  or  other  interests  in  land,  may 
be  revoked  by  the  court  for  sufficient  cause,  and  a  new  commission 
may  be  issued  or  other  appropriate  proceedings  taken.  R.  L.  c.  162, 
§34. 

The  court  shall  determine  the  compensation  of  private  persons  who 
perform  service  required  by  law,  or  in  the  execution  of  legal  process, 
if  no  other  provision  therefor  is  made.  R.  L.  c.  204,  §  23.  This 
statute  applies  to  fees  of  appraisers  of  estates  of  deceased  persons,  of 
commissioners  for  making  partition  of  real  estate,  and  to  fees  of  many 
other  persons  appointed  to  perform  service  required  by  law  or  in  the 
execution  of  legal  process. 

2  R.  L.  c.  184,  §  13. 

25 


386       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

to  be  divided,  and,  after  hearing  the  parties  who  may  be 
present,  to  make  the  partition  among  the  persons  entitled 
tliereto,  regard  being  had  to  the  value  of  the  advance- 
ments, if  any,  made  by  the  deceased  in  his  lifetime.^  The 
petitioner's  share  is  not  alone  to  be  set  off,  but  the  share 
of  each  person  interested  is  to  be  assigned  to  him,  unless 
two  or  more  of  the  parties  consent  to  hold  their  shares 
together  and  undivided.  And  the  partition  must  embrace 
the  entire  estate  wlien  either  of  the  parties  interested  re- 
quires it.  If  there  are  several  parcels  of  land,  the  com- 
missioners are  not  obliged  to  set  off  to  each  heir  a  portion 
of  every  parcel,  but  they  may  assign  to  one,  or  more,  or 
all,  an  entire  parcel  each,  as  the  situation  of  the  land  may 
make  it  advisable.^ 

If  a  part  of  the  land  cannot  be  divided  without  great 
inconvenience  to  the  owners  or  is  of  greater  value  than 
the  share  of  any  party,  or  if  all  the  land  cannot  be  divided 
"without  such  inconvenience,  the  whole  or  any  part  thereof 
may  be  set  off  to  any  one  or  more  of  the  parties,  upon 
payment  by  him  or  them  to  any  one  or  more  of  the  others 
of  such  sums  of  money  as  the  commissioners  may  award 
to  make  the  partition  just  and  equal.^ 

1  As  to  advancements,  see  page  3C0. 

2  Hagar  v.  Wiswall,  10  Pick.  152;  Barnes  v.  Lynch,  1.51  Mass.  510, 
513.  The  commissioners  may  assign  to  the  petitioner  all  the  right  in 
a  passageway  theretofore  appurtenant  to  the  whole  estate  "  to  become 
exclusively  appurtenant  to  the  share  set  off  to  the  petitioner,"  the 
way  being  upon  other  land  of  the  petitioner,  and  the  parcel  set  off  to 
the  respondent  being  separated  from  it  by  that  set  off  to  the  petitioner. 
Mount  Hope  Iron  Co.  v.  Dearden,  140  Mass.  430. 

8  R.  L.  c.  184,  §  41  ;  Thayer  /•.  Thayer,  7  Pick.  200.  When  heirs 
agree  that  the  commissioners  shall  assign  the  greater  part  to  the  eldest 
son,  on  his  paying  them  such  sums  of  money  as  the  commissioners 
shall  award  to  make  the  partition  just  and  equal,  and  the  estate  is  so 
assigned,  and  they  receive  the  money  awarded  to  them,  they  thereby 


PARTITION   OF   LANDS.  387 

If  a  party  dies  during  the  pendency  of  the  petition,  the 
share  or  proportion  belonging  to  him  may  be  assigned  in 
his  name  to  his  estate,  to  be  held  and  disposed  of  in  the 
same  manner  as  if  the  partition  had  been  made  prior  to 
his  decease.^ 

SALE   OF   LAND    THAT    CANNOT   BE   ADVANTAGEOUSLY    DIVIDED. 

In  any  case  of  partition  the  court  may,  at  the  time  of 
appointing  commissioners,  or  subsequently  by  agreement 
of  parties,  or  at  any  time  after  notice  to  all  persons  inter- 
ested, order  the  commissioners  to  make  sale  and  convey- 
ance of  the  whole  or  any  part  of  the  land  that  cannot  be 
advantageously  divided,  upon  such  terms  and  conditions 
and  with  such  securities  for  the  proceeds  of  such  sale  as 
the  court  may  order,  and  to  distribute  and  pay  over  the 
proceeds  of  the  sale  in  such  manner  as  to  make  the 
partition  just  and  equal.  If  the  court  orders  such  sale 
before  the  commissioners  are  appointed,  it  may  appoint  one 

waive  their  strict  legal  rights,  and  cannot  afterwards,  when  the  rights 
of  others  are  affecteil,  avoid  the  division  by  showing  that  the  estate 
might  have  bpen  divided  among  them  all  without  great  prejudice  to 
the  whole.  White  v.  Clapp,  8  Met.  365;  Jenks  v.  Rowland,  3  Gray, 
536,  and  cases  cited. 

A  conveyance  by  one  tenant  in  common  of  land  purporting  to  give 
a  good  title  in  severalty  to  a  particular  portion  of  it,  cannot  affect  the 
right  of  the  other  tenants  in  common  to  have  partition  of  the  estate. 
Barnes  v.  Boardman,  157  Mass.  479. 

^  R.  L.  c.  184:,  §  33.  The  commissioners  may  permit  the  parties  to 
state  their  preferences  and  to  give  their  reasons  for  any  particular 
division  of  the  land,  but  are  not  required  to  hear  experts  or  other  -wit- 
nesses as  to  the  effect  thereof  upon  the  parties,  or  upon  adjoining 
property  owned  by  them  in  severalty;  nor  are  they  bound  by  admis- 
sions made  by  the  parties.     Hall  v.  Hall,  152  Mass.  13G. 

The  judge  of  probate  has  no  authority  to  settle  lands  assigned  for 
dower,  after  the  widow's  term  has  expired,  on  one  or  more  of  the  next 
of  kin  to  the  exclusion  of  the  others.  Hunt  v.  Hapgood,  4  Mass.  117  ; 
Sumner  v.  Parker,  7  Maas.  79. 


388       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

commissioner  to  make  such  sale,  conveyance,  and  division 
of  its  proceeds.  The  sale  is  made  by  public  auction,  after 
like  notice  as  is  required  for  the  sale  of  lands  by  executors 
and  administrators,  and  the  evidence  thereof  may  be  per- 
petuated in  like  manner  by  returns  filed  with  the  register 
of  probate.  The  conveyance  is  made  by  the  commis- 
sioners, and  is  conclusive  against  all  parties  to  the  pro- 
ceedings for  partition,  and  against  those  claiming  by, 
through,  or  under  them.  The  statute  provisions  for  the 
protection  of  purchasers  at  sales  by  executors  or  adminis- 
trators apply  to  sales  by  the  commissioners.^  A  distribu- 
tive share  of  the  money  arising  from  the  sale  remaining 
unpaid  at  the  time  of  confirming  the  proceedings,  or  of 
establishing  the  partition,  is  deposited  in  such  savings- 
banks  or  other  like  institutions  as  the  court  may  direct,  in 
like  manner  as  distributive  shares  remaining  unclaimed 
in  the  hands  of  administrators  are  deposited.^ 

Prior  to  1870,  on  an  application  for  partition  of  lands 
there  was  no  power  to  order  a  sale. 

RETURN   OF   THE   COMMISSIONERS,  AND   PROCEEDINGS   THEREON. 

The  return  of  the  commissioners  should  fully  set  forth 
their  proceedings  under  the  warrant.  The  fact  that  they 
gave  notice  to  parties  interested  of  the  time  and  place  of 
making  the  partition  should  appear  in  their  report,  and 
the  fact  that  the  persons  notified  were  present,  or  not, 
should  be  stated.     The  original  notice  to  parties,  with  the 

1  For  these  provisions,  see  R.  L.  c.  148,  §  19. 

2  R.  L.  c.  184,  §§  47,  48;  Allen  v.  Libbey,  140  Mass.  84 ;  Drew  v. 
Carroll,  154  Mass.  184.  A  sale  may  be  ordered  by  the  court  after  the 
commissioners  have  made  their  report.  Ramsey  v.  Humphrey,  162 
Mass.  385. 


PARTITION    OF   LANDS.  '  389 

return  of  the  person  who  made  the  service,  should  be 
annexed  to  the  report.  Their  appraisal  of  the  several 
parcels  of  real  estate  should  be  stated  in  words  at  length, 
and  the  share  assigned  to  each  heir  or  devisee  should  be 
described  by  metes  and  bounds.  When  a  piece  of  land 
of  more  value  than  one  equal  share  of  the  estate  is  given 
to  one  of  the  heirs,  the  fact  that  it  could  not  be  divided 
without  great  inconvenience  to  the  owners  should  be 
stated,  in  terms,  in  the  return,  and  the  sums  of  money 
to  be  paid  by  such  heir  to  the  other  owners  should  be 
stated.  The  commissioners  should  also  present  with  their 
report  a  statement  of  the  expenses,  including  their  own 
compensation,  of  making  the  partition.  The  warrant 
under  which  they  acted  must  be  returned  with  their 
report. 

If  the  report  of  the  commissioners  is  satisfactory  to  all 
the  persons  interested,  they  should  certify  their  approval 
thereof  in  writing  before  it  is  presented  to  the  court ;  and 
if  either  of  the  parties  is  entitled  to  a  sum  of  money,  to  be 
paid  by  one  or  more  of  the  other  parties,  under  an  award 
of  the  commissioners,  some  delay  and  expense  may  be 
avoided  if  his  certificate  of  the  fact  that  the  money  has 
been  paid  or  secured  to  his  satisfaction  is  returned  with 
the  report;  unless  the  parties  interested  express  their 
assent  to  the  establishment  of  the  partition  as  made  by 
the  commissioners,  notice  to  them  will  be  ordered  before 
any  decree  is  made  upon  the  report. 

If  the  commissioners  were  ordered  to  sell  the  land,  their 
report  should  state  the  amount  received  from  the  sale,  the 
names  of  the  persons  among  whom  the  proceeds  were  dis- 
tributed, and  the  sum  paid  to  each  ;  they  should  file  with 
their  report  the  receipts  of  the  persons  to  whom  the 
money  was  paid,  and  an  affidavit  that  notice  of  the  time 


390       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

and  place  of  the  sale  was  given  as  ordered  by  the  court, 
together  with  a  copj  of  such  notice. 

Any  party  interested  may  appear  and  object  to  the 
report  of  the  commissioners.  In  all  cases,  the  court  may, 
for  any  sufficient  reason,  set  aside  the  return,  and  commit 
the  case  anew  to  the  same  or  other  commissioners.^  Any 
mistoke,  neglect,  or  misconduct  on  the  part  of  the  com- 
missioners, by  which  an  injustice  is  done  to  either  party 
interested,  would,  of  course,  be  sufficient  reason  for  set- 
ting aside  the  return.  And  it  is  a  valid  objection  that 
the  division  made  by  them  is  unequal  or  inconvenient.^ 

1  R.  L.  c.  184,  §  56;  Hall  v.  Hall,  152  Mass.  136.  The  respoudent 
in  a  petition  for  partitioa  of  laud  who  does  not  object  to  an  interlocu- 
tory judgment  for  partition,  cannot,  at  a  hearing  ujion  the  motion 
to  confirm  the  commissioners'  report,  set  uji  want  of  title  in  the  peti- 
tioner as  a  bar  to  the  petition.  Mount  Hope  Iron  Co.  v.  Dearden, 
140  Mass.  430. 

Upon  the  question  of  setting  aside  the  return  of  the  commissioners, 
parol  evidence  of  their  proceedings  not  appearing  in  the  return  is 
competent  so  far  as  it  tends  to  show  mistakes  of  law  made  by  the 
commissioners  which  materially  affect  the  equality  or  justice  of  the 
distribution.     Hall  v.  Hall,  supra. 

If  the  warrant  to  the  commissioners  describes  the  boundary  line  or 
one  of  the  lots  as  "  running  by  "  a  lane,  their  return  is  not  iiregular 
because  it  includes  land  to  the  centre  of  the  lane  as  part  of  the 
premises.     Hall  v.  Hall,  supra. 

-  But  as  the  committee  is  appointed  by  the  court,  and  persons 
selected  on  whose  integrity  and  judgment  the  court  thinks  it  can 
safely  rely,  and  against  whom  neither  party  can  raise  any  objection, 
great  confidence  is  placed  by  the  court  in  the  I'eport  of  the  committee; 
and  it  will  not  be  held  to  be  any  objection  to  a  report  that  witnesses 
can  be  found  who  will  testify  that  the  division  is,  in  their  opinion, 
unjust  or  inconvenient.  To  induce  the  court  to  set  aside  the  report, 
the  inequality  or  inconvenience  must  be  clearly  and  distinctly  pointed 
out,  and  shown  to  the  court  by  clear  and  direct  evidence.  It  is  much 
more  safe  to  rely  upon  the  judgment  of  an  impartial  committee  than 
upon  the  opinion  of  witnesses  selected  by  the  parties.  —  Kichakdson, 
C.  J.,  in  Morrill  v.  Morrill,  5  N.  H.  329.  See  Peck  v.  Metcalf,  8  R.  I. 
386  ;  Field  v.  Hanscomb,  15  Maine,  365  ;  Wilbur  r.  Dyer,  39  Maine,  169. 


PARTITION   OF  LANDS.  391 

The  partition  cannot  be  confirmed  by  a  decree  of  the 
court  until  all  sums  of  money  awarded  by  the  commis- 
sioners to  make  the  partition  equal  are  paid  to  the 
persons  entitled  thereto,  or  .secured  to  their  satisfaction 
or  that  of  the  court.  A  decree  without  such  payment  or 
security  is  erroneous,  and  is  not  a  bar  to  a  subsequent 
partition  on  tlie  petition  of  the  party  to  whom  the  money 
was  awarded.! 

The  partition  is  made  complete  by  a  decree  of  the  court 
accepting  the  report  of  the  commissioners  and  assigning 
to  each  of  the  parties  interested  a  share  of  the  land  in 
severalty. 

Expenses  of  the  Partition.  —  The  expenses  and  charges 
of  the  proceedings  shall  be  allowed  by  the  court  and  paid 
by  all  the  parties  interested  in  the  partition  in  proportion 
to  their  respective  interests,  and  the  court  may  issue 
execution  therefor.^ 

1  R.  L.  c.  184,  §  53;  Jenks  v.  Rowland,  3  Gray,  536;  Thayer  v. 
Thayer,  7  Pick.  209 ;  Newhall  v.  Sadler,  16  Mass.  122. 

An  informal  decree  of  the  probate  court  confirming  the  return  of 
the  commissioners  cannot  afterwards  be  invalidated  for  want  of  a 
more  formal  and  technical  decree  of  division.  White  v.  Clapp,  8  Met. 
365. 

A  proceeding  in  the  probate  court  pursuant  to  an  agreement 
between  tenants  in  common  for  partition  of  the  estate,  although 
incompetent  to  effect  the  partition,  was  held  equivalent  to  a  license 
from  each  of  the  tenants  that  each  might  enter  and  occupy  the  part 
assigned  to  him  by  such  intended  partition  until  the  commencement  of 
legal  process  for  partition,  which  was  held  to  be  a  revocation  of  such 
license.     Pond  v.  Pond,  U  Mass.  403. 

By  an  appeal  from  a  decree  of  the  probate  court  accepting  the 
return  of  the  commissioners  for  the  division  of  an  estate,  the  return  is 
open  to  every  objection  that  could  lawfully  have  been  made  to  its 
acceptance  in  the  court  below.     Sever  v.  Sever,  8  Mass.  132. 

2  R.  L.  c.  184,  §  42.  The  commissioners  are  entitled  to  compensa- 
tion for  their  services  and  expenses  if  they  acted  faithfully  and 
impartially,  although  their  return  is  not  accepted,  or  their  charges 


392       PKOCEEDINGS  IN  THE  PROBATE  COURTS, 

Record  of  the  Partition. — The  return  of  the  commis- 
sioners, when  accepted  by  the  court,  remains  in  the 
registry  of  probate ;  but  the  statute  requires  that  a  copy 
thereof,  certified  by  the  register,  shall  be  recorded  in  the 
registry  of  deeds  for  each  of  the  several  counties  or 
districts  wliere  tlie  lands  lie.^ 


UPON    WHOM   THE   PARTITION   IS   BINDING. 

The  partition,  when  finally  confirmed  and  established, 
is  conclusive  on  all  the  heirs  and  devisees  of  the  deceased, 
and  all  persons  claiming  under  them ;  and  on  all  other 
persons  interested  in  the  premises  who  appeared  and 
answered  in  the  case,  or  assented  in  writing  to  the  pro- 
posed partition,  or  upon  whom  notice  of  the  petition  was 
served,  personally  or  by  publication,  or  who  waived  notice, 
or  for  whom  an  agent  was  appointed,  and  upon  all  persons 
claiming  under  them.  All  other  persons  may  pursue  their 
legal  remedies  for  recovering  the  land,  or  any  part  thereof, 

allowed  by  the  probate  court,  and  may  maintain  an  action  therefor 
against  the  petitioner  for  the  partition.  And  the  petitioner  or  other 
party  to  the  proceedings  who  has  paid  the  expenses  of  making  the 
partition  is  entitled  to  contribution  from  all  the  other  parties  in  inter- 
est, and  may  maintain  actions  therefor  and  obtain  the  execution  pro- 
vided for  by  the  statute.  Potter  v.  Hazard,  11  Allen,  187;  Langdon 
V.  Palmer,  133  Mass.  413. 

Judgment  was  rendered  upon  the  report  of  the  commissioners  on  a 
petition  for  partition  of  land  that  their  report  be  accepted  and  that 
*' partition  be  made,"  and  it  was  further  ordered  that  "  the  case  be 
continued  nisi  upon  the  question  of  costs."  Before  anj'  adjudication 
on  this  question  the  petitioner  died,  and  his  administrator  was  admitted 
by  the  court  to  prosecute  the  case.  It  was  held,  that  the  administrator 
was  erroneously  admitted  to  prosecute,  and  that  costs  could  not  be 
awarded  against  the  respondent.  Richards  v.  Richards,  136  Mass. 
126. 

1  R.  L.  c.  184,  §  57. 


PARTITION   OF   LANDS.  393 

and  for  obtaining  partition  of  the  same,  as  if  the  proceed- 
ings in  the  probate  court  had  not  been  had.^ 

While  a  partition,  when  finally  confirmed  and  estab- 
lished, is  conclusive  on  a  person  having  a  mortgage, 
attachment,  or  other  lien  on  the  share  of  a  part  owner,  so 
far  as  relates  to  the  partition  and  the  assignment  of  the 
shares,  the  lien  will  remain  in  full  force  upon  the  part 
assigned  to  or  left  for  such  part  owner. 

It  is  well  settled,  however,  that  a  conveyance  by  metes 
and  bounds  of  any  separate  parcel  by  one  co-tenant,  or  of 
a  share  of  any  separate  parcel,  is  voidable  by  his  co-ten- 
ants and  is  available  only  by  way  of  estoppel  against  the 
grantor  and  his  heirs.  To  allow  and  give  legal  effect  to 
such  alienation  of  the  interest  of  a  tenant  in  common  in  a 
part  of  the  land  held  in  common,  without  the  consent  of 
the  other  co-tenants,  would  be  to  create  to  their  injury 
new  tenancies  in  common  in  parcels  of  the  land  held  in 
common.'^     The  reason  for  the  rule  is  well  stated  by  Chief 

1  R  L.  c.  184,  §  45;  Procter  v.  Newhall,  17  Mass.  81;  Rice  v. 
Suiith,  14  Mass.  431 ;  Munroe  v.  Luke,  19  Pick.  39,  and  cases  cited. 

All  execution  against  one  holding  lands  in  joint  tenancy,  or  tenancy 
in  common,  cannot  be  extended  by  metes  and  bounds  on  a  part  of  the 
lands  so  holden.     Bartlet  v.  Harlow,  12  Mass.  348. 

A  levy  of  execution  on  the  undivided  interest  of  a  tenant  in  com- 
mon in  a  part  of  the  land  held  in  common  is  invalid.  Blossom  v. 
Brightman,  21  Pick.  283. 

2  Bartlet  v.  Harlow,  12  Mass.  348;  Blossom  v.  Brightman,  21  Pick. 
283;  Graves  v.  Goldthwait,  153  Mass.  268;  Barnes  v.  Lynch,  151 
Mass.  510;  Barnes  r.  Boardman,  157  Mass.  479. 

A  mortgage  made  by  a  tenant  in  common  of  an  undivided  interest 
in  a  specified  parcel  of  the  land  held  in  common  is  invalid  as  against 
his  co-tenants ;  and  the  mortgagee  cannot  object  to  the  decree  of  a 
probate  court  affirming  the  report  of  commissioners  appointed  to  make 
partition,  by  which  the  commissioners,  without  regard  to  the  mort- 
gage, set  off  the  land  mortgaged  to  the  co-tenants  other  than  the  mort- 
gagor and  awarded  a  certain  sum  of  money  to  the  mortgagor  to  make 


394       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Justice  Shaw  in  Adams  v.  Briggs  Iron  Company,  7  Cush. 
361,  369 :  "  The  ground  upon  which  this  doctrine  is 
established  is,  that  a  tenant  in  common  of  an  entire  estate 
is  entitled,  on  partition,  to  have  his  property  assigned  in 
one  entire  parcel,  according  to  his  aliquot  part.  The  re- 
spective co-tenants  may  convey  their  shares  to  one  or  many 
grantees,  as  they  please,  so  it  be  of  the  entire  estate  ; 
because,  whether  there  be  one  or  many  co-tenants,  each 
may  still  have  partition,  which  is  inseparably  incident  to 
an  estate  in  common,  and  have  it  in  one  parcel  and  of  the 
like  kind  and  quality  with  the  estate  which  he  holds  in 
common.  I  have  a  moiety  ;  my  co-tenant  has  a  moiety. 
He  may  convey  a  quarter  of  the  whole  estate  to  one,  an 
eighth  to  another,  a  sixteenth  to  another,  and  so  on  indefi- 
nitely, letting  in  other  co-tenants  with  me.  But  all  being 
seized  of  aliquot  parts,  in  the  same  estate,  and  of  like  kind 
and  quality,  my  right  to  partition  is  not  disturbed  by  the 
number  of  co-tenants.  But  if  he  could  convey  his  aliquot 
part  in  specified  parcels  of  the  estate,  he  might  diminish 
the  value  of  my  right,  if  not  render  it  worthless." 

DIVISION    OF  WATER   RIGHTS. 

Joint  tenants  or  tenants  in  common  of  a  mill  privilege, 
water  right,  or  other  incorporeal  hereditament,  may  be 
compelled  to  divide  the  same,  either  by  suit  in  equity  in 
the  superior  court  or  in  the  manner  provided  in  chapter 

the  partition  just  and  equal,  nor  can  the  mortgagee  demand  that  the 
sum  so  awarded  be  paid  or  secured  to  tlie  mortgagee.  Marks  v.  Sewall, 
120  Mass.  174. 

If  a  member  of  an  Indian  tribe  mortgages  the  undivided  interest 
acquired  by  him  in  all  of  its  undivided  lands,  and  subsequently  parti- 
tion is  duly  had  of  such  lands,  the  mortgage  lien  will  attach  to  the 
portion  assigned  to  the  mortgagor.     Drew  v.  Carroll,  151  Mass.  181. 


PAKTITION    OF   LANDS.  395 

184  of  the  Revised  Laws  for  the  partition  of  land.  Tn  the 
latter  case  tlie  commissioners  appointed  to  make  partition 
are  required  to  set  forth  in  their  return  the  best  method 
of  setting  off  to  the  several  parties  their  respective  shares, 
and  thereupon  the  court  may  make  all  such  orders  and 
decrees  as  might  be  made  in  equity. 

In  like  manner  partition  may  be  made  of  the  water  of 
a  natural  stream,  not  navigable,  the  banks  of  which  are 
owned  by  different  riparian  proprietors.^ 

PARTITION   OF    LANDS    HELD    BY    AN    EXECUTOR    OR    ADMINIS- 
TRATOR  IN   MORTGAGE   OR   ON    EXECUTION. 

Real  property  which  is  held  by  an  executor  or  adminis- 
trator in  mortgage,  or  taken  on  execution  by  him,  may,  at 
any  time  before  the  right  of  redemption  is  foreclosed,  be 
sold  subject  to  such  right,  in  the  same  manner  as  personal 
property  of  a  person  deceased  ;  and  after  such  right  has 
been  foreclosed,  it  may  be  sold  in  the  same  manner  as  real 
property  of  which  the  deceased  died  seised. 

If  land  so  held  by  an  executor  or  administrator  in 
mortgage  or  on  execution  is  not  redeemed  or  sold  as  pro- 
vided in  the  preceding  paragraph,  the  statute  requires  that 
it  shall  be  assigned  and  distributed  to  the  same  persons 
and  in  the  same  proportions  as  if  it  had  been  part  of  the 
personal  property  of  the  deceased  ;  and  if  upon  such  dis- 
tribution the  property  comes  to  two  or  more  persons,  the 
probate  court  may  cause  partition  to  be  made  between 
them  in  like  manner  as  if  it  had  been  real  property  held 
by  the  deceased  in  his  lifetime.^ 

1  R.  L.  c.  184,  §§  58,  59  ;  DeWitt  v.  Harvey,  4  Gray,  486;  Wamesit 
Power  Co  v.  Sterling  Mills,  158  Mass.  435. 

•^  An  executor  or  administrator  to  whom  land  is  set  off  on  execu- 
tion takes  an  estate  in  such  land  in  trust  therein,  and  neither  the  legal 


396  PKOCEEDINGS   IN   THE   PROBATE   COURTS. 


PARTITION   OP   REGISTERED   LAND. 

In  all  proceedings  for  partition  of  registered  land,  or  for 
the  assignment  in  fee  of  registered  land  claimed  by  hus- 
band or  wife  by  statutory  right,  after  the  entry  of  the  final 
judgment  or  decree  of  partition  and  the  acceptance  of  the 
report  of  the  commissioners,  a  copy  of  the  judgment  or 
decree  and  of  the  return  of  the  commissioners,  certified 
by  the  clerk  or  register,  as  the  case  may  be,  must  be  filed 
and  registered  ;  and  thereupon,  if  the  land  is  set  off  to  the 
owners  in  severalty,  any  owner  will  be  entitled  to  have  a 
certificate  of  the  share  set  off  to  him  in  severalty,  and  to 
receive  an  owner's  duplicate  certificate  tlierefor.  If  the 
land  is  ordered  to  be  sold,  the  purchaser  or  his  assigns  will 
be  entitled  to  have  a  certificate  of  title  issued  to  him  or 
them  upon  presenthig  the  deed  of  the  commissioners  for 
registration.^ 

estate  nor  the  possession  vests  in  tiie  heirs  or  legatees  until  the  land  is 
apportioned  and  distributed  in  the  probate  court,  or  until  a  final  set- 
tlement of  the  estate.  Boylston  v.  Carver,  4  JMass.  597;  Baldwin  v. 
Timmins,  3  Gray,  302. 

A  mortgagee's  title  to  real  estate  vests,  on  his  decease,  in  his  execu- 
tor or  administrator,  and  a  quitclaim  deed  from  an  heir,  made  before 
a  decree  of  distribution  though  before  the  foreclosure  of  the  mortgage, 
will  not  give  the  grantee  a  sufficient  title  to  sustain  a  writ  of  entry. 
It  is  only  by  a  decree  of  the  probate  court  that  the  title  of  tlie  admin- 
istrator or  executor  is  terminated,  and  such  decree  for  the  assignment 
and  distribution  of  the  estate  is  necessary  to  determine  in  whom  and 
in  what  proportions  the  estate  shall  vest.  Taft  v.  Stevens,  3  Gray, 
504. 

1  R.  L.  c.  128,  §  85. 


CHAPTER  XYIII. 

ASSIGNMENT  OF  DOWER  AND  OTHER  LIFE-ESTATES. 
WHEN    THE    PROBATE    COURT   MAY   ASSIGN    DOWER. 

A  WIFE  is  entitled  to  her  dower  at  common  law  in  the 
lands  of  her  deceased  husband,  provided  she  files  her 
election  and  claim  therefor  in  the  registry  of  probate 
within  one  year  after  the  date  of  the  approval  of  the  bond 
of  the  executor  or  administrator  of  her  husband ;  and  if 
her  right  is  not  disputed  by  his  heirs  or  devisees,  it  may 
be  assigned  to  her,  in  whatever  counties  the  lands  lie,  by 
the  probate  court  for  the  county  in  which  the  estate  of 
the  husband  is  settled.^ 

1  R.  L.  c.  132,  §§  1,  9;  Buckley  v.  Frasier,  153  Mass.  526.  A 
widow  is  not  dowable  of  a  remainder  of  which  her  husband  died 
seised.  Wilmarth  v.  Bridges,  113  Mass.  407;  Watson  v.  Watson,  150 
Mass.  84;  Hill  v.  Pike,  174  Mass.  582.  Nor  of  a  reversion.  Bakery. 
Baker,  167  Mass.  575.  A  widow  may  assign  her  right  of  dower  with 
the  right  to  have  the  dower  assigned  to  her  for  the  benefit  of  her 
assignee.     Guckian  v.  Riley,  135  Mass.  73. 

Dower  may  be  assigned  by  the  heirs,  without  any  order  of  court 
and  without  a  deed,  it  not  being  a  conveyance  of  title.  The  widow 
holds  her  estate  by  law,  and  not  by  contract,  and  requires  nothing  but 
to  have  her  part  distinguished  from  the  rest  of  the  land.  Conant  v. 
Little,  1  Pick.  189  ;  Shattuck  i:  Gragg,  23  Pick.  88.  A  guardian  may 
assign  dower  in  his  ward's  estate  to  any  widow  entitled  thereto.  R.  L. 
c.  145,  §  27. 

The  widow  may  occupy  the  land  jointly  with  the  heirs,  or  may 
receive  her  share  of  the  rents  and  profits,  so  long  as  the  heirs  do  not 
object,  without  having  her  interest  assigned.     R.  L.  c.  132,  §  12. 

A  widow's  right  to  have  dower  assigned  to  her  cannot  be  attached 


398       PROCEEDINGS  IN  THE  PROBATE  COURTS. 


THE  ESTATE  OP  DOWER. 

Dower  at  common  law  exists  where  a  man  is  seised  of 
an  e&tate  of  inheritance  and  dies  in  the  lifetime  of  his 
wife.  In  that  case  she  is  entitled  to  be  endowed  for  her 
natural  life  of  all  the  lands  of  which  her  husband  was 
seised,  either  in  deed  or  in  law,  at  any  time  during  the 
coverture,  and  of  which  any  issue  that  she  might  have 
had  might  by  possibility  have  been  heir.^  Her  right  is  so 
protected  by  law  that  no  act  of  the  husband  can  deprive 
lier  of  it.  And  she  is  entitled  to  her  dower,  though  her 
husband  dies  insolvent.^    She  is  also  entitled  to  dower  in 

or  taken  on  execution  in  an  action  of  law.  The  remedy  of  her  cred- 
itor is  by  a  bill  in  equity.     McMahon  v.  Gray,  150  Mass.  289. 

A  widow  before  her  dower  is  assigned  to  her  has  no  estate  in  the 
lands  of  her  deceased  husband.  Smith  v.  Shaw,  150  IMass.  297  ;  Flynn 
V.  Flynn,  171  Mass.  312.     See  Eastham  v.  Barrett,  152  Mass.  56. 

An  assignment  of  dower  by  the  probate  court  against  common 
right  in  all  the  lands  of  which  the  husband  died  seised,  and  duly 
accepted  and  enjoyed  by  her,  is  conclusive  that  dower  was  set  out  iu 
all  his  real  estate.     Fuller  v.  Rust,  153  Mass.  46. 

A  widow  is  not  dowable  of  lands  of  which  her  deceased  husband 
had  only  a  momentary  seisin.     Pendleton  v.  Pomeroy,  4  Allen,  510. 

A  guardian  may  assign  dower.     Jones  i'.  Brewer,  1  Pick.  314. 

A  widow  having  an  estate  of  homestead  is  entitled  to  have  her 
dower  assigned  to  her  out  of  the  whole  of  the  real  estate  of  her  de- 
ceased husband,  and  then  to  have  her  estate  of  homestead  set  off  to 
her  from  the  remainder  of  the  estate.  Cowdrey  v.  Cowdrey,  131  Mass. 
186;  Weller  v.  Weller,  131  Mass.  446. 

The  purchase  by  a  railroad  corporation  of  land  necessary  for  sta- 
tion purposes  does  not  extinguish  an  existing  inchoate  right  of  dower 
therein.     Nye  v.  Taunton  Branch  R.  R.  Co.,  113  Mass.  277. 

1  4  Kent,  Com.  37;  Hale  v.  Munn,  4  Gray,  132. 

2  Dower  at  common  law  is  the  life  estate  of  a  wife  in  one-third  of 
all  the  legal  estates  of  inheritance  of  which  her  husband  is  seised  at 
any  time  during  coverture  of  a  sole,  beneficial,  and  immediate  seisin, 
and  which  any  issue  of  theirs  might  directly  inherit.  It  has  three 
stages;  namely  :  (1)  Its  inchoate  stage,  extending  from  the  time  of 


ASSIGNMENT   OF   DOWER   AND   OTHER   LIFE-ESTATES.     399 

real  property  sold  by  an  executor  or  administrator  for 
payment  of  debts,  legacies,  ctc.^ 

To  establish  a  claim  to  dower  at  common  law,  it  must 
be  shown  that  there  was  a  marriage,  and  a  seisin  by  the 
husband  at  some  time  during  the  coverture,  and  that  the 
husband  is  dead.  Without  the  concurrence  of  these  three 
circumstances  no  title  to  dower  can  be  consummated.  To 
enable  the  probate  court  to  assign  dower,  it  must  further  ap- 
pear that  the  husband  was  seised  at  the  time  of  his  death.  ^ 

Dower  attaches  to  all  marriages  not  absolutely  void  and 
existing  at  the  death  of  the  husband.  Though  the  mar- 
riage was  voidable,  if  it  was  not  annulled  by  decree  during 
the  husband's  lifetime,  the  widow  will  take  her  dower. 
Dower  belongs  to  a  marriage  within  the  age  of  consent, 
though  the  husband  dies  within  that  age.^ 

the  marriage  or  the  acquisition  of  the  property  iu  question  to  the  time 
of  the  husband's  death  ;  (2)  Its  consummate  stage,  extending  from 
the  death  of  the  husband  ;  and  (3)  Its  assigned  stage,  extending  from 
the  time  it  is  set  ofP  to  the  widow.  Am.  &  Eng.  Encyclopaedia  of  Law, 
1st  ed.,  vol.  v.  p.  885. 

In  dower  against  the  alienee  of  her  husband,  a  widow  is  to  recover 
her  dower  as  the  tenements  were  at  the  time  of  the  alienation  by  the 
husband  ;  but  against  the  heir  she  is  to  have  dower  in  improvements 
made  by  him  after  the  descent.  Catlin  v.  Ware,  9  Mass.  218  ;  Parker 
V.  Parker,  17  Pick.  240. 

Where  two  widows  entitled  to  dower  in  the  same  land  the  one  hav- 
ing the  elder  title  released  it  to  the  tenant  without  having  it  set  off  to 
her,  it  was  held  that  the  other  widow  was  entitled  to  dower  only  in  two- 
thirds  of  the  land.     Leavitt  v.  Lamprey,  13  Pick.  382. 

When  a  sale  by  a  guardian  of  the  ward's  land,  in  which  the  guar- 
dian herself  has  a  right  of  dower,  is  avoided  by  the  ward  because  made 
to  the  guardian  herself,  the  right  of  dower  revives.  Walker  v.  Walker, 
101  Mass.  169. 

1  R.  L.  c.  146,  §  2. 

2  Sheafe  v.  O'Neil,  9  Mass.  9  ;  Raynham  v.  Wilraarth,  13  Met.  415. 

'  But  if  the  parties  separate  during  such  nonage,  and  do  not  after- 
wards cohabit,  the  marriage  will  be  void  without  a  decree  of  divorce 
or  other  legal  process.     R.  L.  c.  151,  §  9. 


400       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

After  a  divorce,  a  wife  is  not  entitled  to  dower  in  the 
land  of  her  husband,  unless,  after  a  decree  of. divorce  nisi 
granted  upon  the  libel  of  the  wife,  the  husband  dies  before 
such  decree  is  made  absolute,  except  that  if  the  divorce 
was  for  the  cause  of  adultery  committed  by  the  husband, 
or  because  of  his  sentence  to  confinement  at  hard  labor, 
she  is  entitled  to  dower  in  the  same  manner  as  if  he  were 
dead.^ 

A  married  woman  may  bar  her  right  of  dower  in  an 
estate  conveyed  by  her  husband  or  by  operation  of  law  by 
joining  in  the  deed  conveying  the  same,  and  therein  releas- 
ing her  right  to  dower,  or  by  releasing  the  same  by  a  sub- 
sequent deed  executed  either  separately  or  jointly  with  her 
husband.  Her  dower  may  also  be  released  in  the  manner 
provided  in  chapter  one  hundred  and  fifty-three.^ 

If  the  guardian  of  an  insane  wife  is  authorized,  under  the 
provisions  of  section  19  of  chapter  158  of  the  Revised 
Laws,  to  release  the  dower  of  his  ward,  and  the  probate 
court  finds  that  a  portion  of  the  proceeds  of  such  real  prop- 

1  R,  L.  c.  152,  §  24;  Smith  v.  Smith,  13  Mass.  231 ;  Loker  v.  Ger- 
ald, 157  Mass.  42. 

2  R.  L.  c.  132,  §  5 ;  Mason  v.  Mason,  140  Mass.  63. 

St.  1902,  c.  478,  provides  that  the  signature  of  any  married  woman 
under  the  age  of  twenty-one  years,  affixed  by  her  to  any  instrument  re- 
lating to  the  conveyance  of  land  of  her  husband,  shall  have  the  same 
effect  as  if  she  were  over  that  age. 

While  a  wife  may  bar  her  right  of  dower  by  releasing  the  same  in 
a  deed  executed  by  her  husband,  or  by  a  subsequent  deed  executed 
either  separately  or  jointly  with  her  husband,  yet  she  cannot  convey 
her  inchoate  right  of  dower  to  a  person  to  whom  her  husband  has  not 
conveyed  the  land.  Such  a  deed  is  void.  Flynn  v.  Flynn,  171  Mass. 
312,  314. 

A  husband  conveyed  an  undivided  moiety,  in  which  also  his  wife 
released  her  right  to  dower  ;  partition  was  afterwards  made  by  deed. 
It  was  held  that  the  wife  was  dowable  only  in  the  moiety  assigned  to 
her  husband  in  the  partition.    Potter  v.  Wheeler,  13  Mass.  504. 


ASSIGNMENT    OF   DOWER   AND   OTHER   LIFE-ESTATES.     401 

erty,  or  of  a  sura  loaned  on  mortgage  thereof,  sliould  be  re- 
served for  the  use  of  such  ward,  it  may  order  that  a  certain 
portion,  not  exceeding  one-third  of  the  net  amount  of  the 
proceeds  or  sum  actually  realized  from  such  sale  or  mort- 
gage, exclusive  of  any  encumbrance  then  existing  on  the 
property,  shall  be  set  aside  and  paid  over  to  such  guardian, 
who  shall  invest  and  hold  it  for  the  benefit  of  the  wife 
during  her  life  if  she  survives  her  husband.  The  income 
of  such  portion  shall  be  received  and  enjoyed  by  the 
husband  during  the  life  of  his  wife,  or  until  otherwise 
ordered  by  the  court  for  cause.  If  he  survives  her,  the 
principal  shall,  upon  her  decease,  be  paid  over  to  him ; 
but  if  he  does  not  survive  her,  to  his  heirs,  executors,  or 
administrators.^ 

When  the  husband  of  an  insane  woman  has  conveyed 
real  estate  in  trust  without  a  power  of  revocation,  and  in 
such  conveyance  provision  is  made  for  his  wife,  which  the 
probate  court,  upon  petition,  after  notice  and  a  hearing, 
finds  is  sufficient  in  lieu  of  dower  therein,  the  trustee  in 
such  conveyance  may  convey  such  real  property  free  from 
all  right  of  dower.^ 

OF   WHAT   LANDS    THE   WIDOW   IS    DOWABLE. 

As  to  Wild  Lands.  —  A  widow  is  not  entitled  under  the 
statute  to  dower  in  wild  lands  of  which  her  husband  died 

1  R.  L.  c.  153,  §  21. 

2  Ibid.  §  23.  A  wife  may  contract  with  her  husband  to  release 
dower.     Winn  i;.  Sanford,  118  Mass.  39. 

A  widow  is  not  entitled  to  dower  in  lands  conveyed  away  by  her 
husband  before  his  marriage,  although  such  conveyance  was  fraudu- 
lent and  void  as  against  his  creditors.  Whitbed  y.  Mallory,  4  Cush. 
138.  But  if  the  fraudulent  conveyance  of  the  land  was  made  during 
coverture,  she  is  entitled  to  her  dower,  even  though  she  joined  iu 
the  conveyance  with  her  husband  to  release  it.  Kobiuson  v.  Bates, 
3  Met.  10. 

26  \ 


402       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

seised,  except  wood-lots  or  other  land  used  with  the  farm 
or  dwelling-house.^  Her  riglit  in  such  land  is  limited  to 
wood  and  timber  used  and  consumed  on  the  estate,  and  for 
purposes  connected  with  its  proper  use,  occupation,  and 
enjoyment.^ 

Mines  and  Quarries.  —  A  widow  is  entitled  to  dower  in 
such  mines  and  quarries  as  were  actually  opened  and  used 
during  the  lifetime  of  the  husband,  whether  he  continued 
to  work  them  to  the  period  of  his  death  or  not."''  A  bed 
of  iron  ore  of  considerable  extent  is  regarded  as  opened, 
although  the  openings  which  had  been  wrought  by  the 
husband  had  been  partially  filled  up  and  abandoned,  and 
other  openings  into  the  same  bed  had  been  made  by  the 
heirs.*  The  tenant  in  dower  may  work  an  open  mine  or 
quarry  for  her  own  benefit,  but  it  is  waste  for  her  to  open 
and  work  it. 

Lands  of  Tenants  in  Common.  —  A  widow  is  entitled  to 
dower  in  lands  owned  by  her  husband  as  tenant  in  common 

1  R.  L.  c.  132,  §  3. 

2  White  V.  Cutler,  17  Pick.  248 ;  White  v.  Willis,  7  Pick.  143 ; 
Noyes  v.  Stone,  163  Mass.  490.  See  Phillips  v.  Allen,  7  Allen,  115. 
When  it  appears  that  the  wood  and  timber  have  ceased  to  improve  by 
growth,  or  for  any  cause  ought  to  be  cut,  the  probate  court  may  ap- 
point a  trustee  and  authorize  him  to  sell  it,  invest  the  proceeds,  and 
pay  to  the  widow  the  income  thereof  during  her  life,  and  at  her  death 
to  pay  the  principal  sura  to  the  owner  of  the  land.     R.  L.  c.  134,  §  11. 

«  Stoughton  V.  Leigh,  1  Taunt.  402. 

*  Coates  V.  Cheever,  1  Co  wen,  460.  A  husband  died  seised  of  four 
acres  of  land  consisting  of  a  slate  quarry,  mostly  below  the  surface  of 
the  ground,  but  pai'tially  above  ground.  One  quarter  of  an  acre  of 
the  quarry  had  been  dug  over,  and  the  practice  was  to  take  a  section 
of  ten  or  twelve  feet  square  on  the  surface,  and  go  down  to  a  certain 
depth,  and  then  begin  on  the  surface  again.  Held,  that  not  only  that 
portion  of  the  quarry  which  had  been  actually  dug,  but  the  whole  ex- 
tent owned  by  the  husband,  must  be  considered  as  opened,  and  so  the 
widow  was  entitled  to  dower  in  the  same.  Billings  v.  Taylor,  10  Pick. 
460. 


ASSIGNMENT   OF   DOWER   AND   OTHER  LIFE-ESTATES.    403 

with  other  persons.^  But  land  purchased  by  partners, 
with  partnership  funds,  for  partnership  purposes,  is  consid- 
ered in  equity  as  partnership  stock.  Though  conveyed  to 
them  as  tenants  in  common,  it  vests  in  them  and  tlieir 
respective  heirs  in  trust  for  the  purposes  of  the  partner- 
ship, and  is  to  be  applied,  if  necessary,  towards  payment 
of  the  partnership  debts.  If  so  required  for  the  payment 
of  debts,  the  widows  of  partners  are  not  entitled  to  dower 
in  such  land.2 

If  the  land,  though  purchased  with  partnership  funds, 
was  purchased  in  such  a  manner  as  to  preclude  such 
implied  trust,  the  widow  will  be  entitled  to  her  dower 
therein.  This  may  be  the  case  when  there  is  an  express 
agreement  at  the  time  of  the  purchase  that  the  property 
is  to  be  held  by  the  partners  separately  for  their  separate 
use,  or  a  similar  provision  in  the  articles  of  copartnership, 
or  where  the  price  of  the  purchase  is  charged  to  the  part- 
ners respectively,  in  their  several  accounts  with  the  firm.^ 

Lands  eyicumhered  hy  Mortgage.  —  A  widow  is  not  en- 
titled to  dower  at  common  law  in  estates  of  which  her 
husband  is  only  equitably  seised.  But  the  statute  extends 
her  right  of  dower  to  equities  of  redemption  of  mortgaged 
estates.^     If  she  has  released  her  right  of  dower  upon  a 

^  Pynchon  v.  Lester,  6  Gray,  314;  Blossom  v.  Blossom,  9  Allen,  254. 

2  Dyer  v.  Clark,  5  Met.  562;  Howard  v.  Priest,  ibid.  582;  Burnside 
V.  Merrick,  4  Met.  537;  Wilcox  v.  Wilcox,  13  Allen,  252. 

8  Dyer  v.  Clark,  5  Met.  579.  But  ■where  land  was  conveyed  by  a 
deed  absolute  on  its  face,  the  widow  of  the  grantee  was  allowed  dower 
therein,  although  the  conveyance  was  in  fact  on  an  oral  agreement 
that  on  the  repayment  of  a  certain  loan  the  land  should  be  reconveyed, 
and  the  grantee  never  entered  under  his  deed  or  claimed  possession  of 
the  estate.     Atwood  v.  Atwood,  22  Pick.  283. 

*  Lund  V.  Woods,  11  Met.  566;  Walsh  v.  AVilson,  130  Mass.  124. 

A  wife  joined  with  her  husband  as  grantor  in  a  mortgage  of  land 
♦'  in  order  to  release  her  rights  under  the  homestead  exemption  act." 


404       TROCEEDINGS  IN  THE  PROBATE  COURTS. 

mortgage  mide  by  licr  husband,  or  if  lie  is  seised  of  land 
subject  to  a  mortgage  which  is  valid  and  effectual  as 
against  her,  she  is  nevertheless  entitled  to  dower  in  the 
mortgaged  premises  as  against  every  person  except  the 
mortgagee  and  those  claiming  under  him.  If  the  heir  or 
other  person  claiming  under  the  husband  redeems  the 
mortgage,  the  widow  can  either  repay  such  part  of  the 
money  paid  by  him  as  is  equal  to  the  proportion  which 
her  interest  in  the  mortgaged  premises  bears  to  the  whole 


The  deed  contained  full  covenants  of  seisin  and  warranty.  It  was  held, 
that  she  did  not  thereby  bar  her  right  of  dower  in  the  land,  although 
the  estate  at  the  time  the  mortgage  was  given  was  of  less  value  than 
eight  hundred  dollars.  Tirrel  v.  Kenney,  137  Mass.  30.  See  Allen- 
dorff  V.  Gaugengigl,  146  Mass.  542  ;  Toomey  v.  McLean,  105  Mass.  122; 
Sargeant  v.  Fuller,  ibid.  119;  Brown  v.  Lapham,  3  Cush.  551  ;  Hil- 
dreth  v  Jones,  13  Mass.  525. 

An  heir  of  real  estate  liable  to  sale  for  payment  of  debts  of  the 
deceased,  and  subject  to  a  mortgage  for  payment  of  one  of  them,  who 
gives  bond  to  the  executor  conditioned  to  pay  all  the  debts,  and  in 
fulfilling  that  condition  takes  to  himself  an  assignment  of  the  mort- 
gage, cannot  by  virtue  of  the  mortgage  title  and  by  foreclosure  defeat 
estates  of  dower  and  homestead  previously  assigned  to  the  widow 
in  the  mortgaged  premises  with  his  assent.  King  v.  King,  100  Mass. 
224. 

If  a  wife  releases  dower  in  her  husband's  land  at  his  request  in 
consideration  of  an  oral  agreement  by  him  to  convey  to  her  other  land, 
and  he  neglects  to  do  so  and  becomes  insolvent,  she  cannot  maintain 
a  bill  in  equity  against  his  assignees  in  insolvency  to  compel  such 
conveyance,  nor  to  make  reimbursement  to  her  for  the  value  of  the 
dower  out  of  her  husband's  estate.  Winchester  v.  Holmes,  138  Mass. 
540.  And  if  within  six  months  of  the  commencement  of  the  insol- 
vency proceedings  the  husband  conveys  land  to  her  through  a  third 
person,  and  she  had  reasonable  cause  to  believe  him  insolvent,  his  as- 
signees may  avoid  the  conveyance.  Holmes  v.  Winchester,  135  Mass. 
299. 

Had  the  agreement  on  the  husband's  part  been  to  convey  to  her 
personalty,  the  wife  would  have  been  protected.  Holmes  v.  Winches- 
ter, 133  Mass.  140. 


ASSIGNMENT   OF   DOWER   AND    OTHER    LIFE-ESTATES.     405 

value  thereof,  or  she  can,  at  her  election,  take  dower  only 
according  to  the  value  of  the  estate  after  deducting  the 
money  paid  for  redemption.^ 

Applications  for  dower  in  mortgaged  lands  are  not 
usually  made  to  the  probate  court,  although  that  court 
may  assign  dower  in  such  lands  when  all  the  parties 
interested  consent.  The  legal  estate  is  in  the  mortgagee  ; 
but  as  the  mortgage  is  intended  only  as  security  for  a 
debt,  it  is  considered  as  between  the  mortgagor  and  all 
the  world,  except  the  mortgagee  and  his  assigns,  only  as  a 
pledge  and  an  encumbrance,  the  mortgagor  still  remain- 
ing the  owner  of  the  estate.  If,  therefore,  the  heirs  or 
devisees  do  not  dispute  the  widow's  claim,  and  the  mort- 
gagee consents,  the  probate  court  may  assign  dower  in  the 
whole  estate  mortgaged,  and  the  assignment  will  be  valid, 
although  the  widow  joined  her  husband  in  the  mortgage 
deed  for  the  purpose  of  relinquishing  her  dower.^ 

Leased  Lands.  —  When  land  is  demised  for  the  term  of 
one  hundred  years  or  more,  the  term,  so  long  as  fifty  years 
thereof  remain  unexpired,  is  regarded  by  the  statute  as  an 
estate  in  fee-simple  as  to  everything  concerning  the  right 
of  dower  or  of  curtesy  therein.  When  curtesy  or  dower  is 
assigned  out  of  such  land,  the  husband  or  widow  and  his 
or  her  assigns  are  held  to  pay  to  the  owner  of  the  unex- 

^  R.  L  c.  132,  §  4;  Newton  v.  Cook,  4  Gray,  46.  If  the  mortgage 
is  paid  out  of  the  personal  property  by  the  administrator.s,  the  widow 
will  be  entitled  to  her  dower  in  the  whole  land  without  liability  for 
contribution.  Robinson  v.  Simmons,  156  Mass.  126,  See  Sargeant 
V.  Fuller,  105  Mass.  119. 

To  redeem  land  from  a  mortgage  made  by  her  husband  and  herself, 
a  widow  cannot  maintain  a  bill  in  equity  without  offering  to  pay  the 
whole  amount  due  on  the  mortgage.  McCabe  v.  Bellows,  7  Gray,  148. 
See  Searle  v.  Chapman,  121  I\Iass.  19. 

a  Henry's  Case,  4  Cash.  257 ;  Draper  v.  Baker,  12  Cash.  288. 


40G       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

pircd  residue  of  the  terra  one-third  of  the  rent  reserved  in 
the  lease  under  which  the  wife  or  husband  held  the  term.^ 

If  a  tenant  in  dower,  by  the  curtesy,  or  for  life  or  years, 
commits  or  suffers  waste  on  the  premises,  the  person  hav- 
ing the  next  immediate  estate  of  inheritance  may  have  an 
action  of  waste  against  such  tenant,  wherein  he  shall 
recover  the  place  wasted  and  the  amount  of  the  damage. 
An  heir  may  bring  such  action  for  waste  done  in  the  time 
of  his  ancestor.^ 

When  the  estate  of  a  devisee  under  a  will  is  taken  for 
the  tenancy  by  the  curtesy  of  the  husband,  or  for  the 
dower  of  the  widow  of  the  testator,  all  the  other  devisees 
and  legatees  shall  contribute  their  respective  proportions 
of  the  loss  to  the  person  from  whom  the  estate  is  so  taken, 
so  that  the  loss  may  fall  eq.ually  upon  all  the  devisees  and 
legatees  in  proportion  to  the  value  of  property  received  by 
them  under  the  will ;  but  no  devisee  or  legatee  shall  be 
held  to  contribute  who  is  exempted  therefrom  by  the  pro- 
visions of  the  will.3 

A  widow  is  entitled  to  dower  in  land  taken  on  execution 
from  her  husband  or  taken  on  execution  upon  a  judgment 
against  his  executor  or  administrator.* 

DOWER   WHEN   THE   WIDOW   WAIVES   THE   PROVISIONS   MADE 
FOR    HER    BY    WILL. 

A  widow  is  not  entitled  to  her  dower  in  addition  to 
the  provisions  of  her  husband's  will,  unless  such  plainly 
appears  by  the  will  to  have  been  the  intention  of  the 
testator.5 

1  R.  L.  c.  129,  §§  1,  2.  2  R.  L.  c.  185,  §  1. 

8  R.  L.  c.  135,  §  .30.  *  R.  L.  c.  178,  §  55. 

6  R,  L.  c.  13.5,  §  18  ;  Borden  v.  Jenks,  140  Mass.  563.  A  widow 
■who  has  not  waived  the  provisions  of  her  husband's  will  by  which  he 


ASSIGNMENT    OF   DOWER    AND    OTHER   LIFE-ESTATES.     407 

At  common  law,  a  devise  or  bequest  to  the  wife  of  a 
testator  was  presumed  to  be  in  addition  to  her  dower, 
unless  it  was  clearly  the  testator's  intention  that  it  should 
be  in  lieu  of  dower  ;  but  under  the  statute  the  widow  takes 
the  provision  made  for  her  in  the  will  in  lieu  of  dower, 
unless  it  plainly  appears  by  the  will  that  the  testator 
intended  such  provision  to  be  in  addition  to  her  dower. 
If  the  testator's  intention  is  left  in  doubt,  she  cannot  take 
dower  unless  she  first  waives  the  provision  made  for  her 
in  the  will.  The  inadequacy  of  the  provision  merely  will 
not  justify  the  inference  that  it  was  intended  to  be  in 
addition  to  dower.^ 

has  given  his  entire  estate  to  her,  is  not  entitled  to  dower  in  land  which, 
in  his  lifetime,  was  seized  on  an  execution  against  him  and  set  off  to 
his  creditor  in  full  satisfaction  of  the  judgment.  Barnard  v.  Fall  River 
Savings  Bank,  135  i\Iass.  326. 

P.  S.  c.  127,  §  20,  now  embodied  in  R.  L.  c.  135,  §  18,  applies 
only  to  lands  within  the  Commonwealth.  Staigg  r.  Atkinson,  144 
Mass.  564. 

It  seems  that  a  claim  for  improvements  made  by  the  tenant  of 
premises  in  which  dower  is  claimed,  for  the  purpose  of  keeping  the 
house  in  tenable  condition,  not  having  been  pleaded  or  suggested  of 
record  before  the  appointment  of  commissioners  to  set  out  the  dower, 
is  not  open  to  the  tenant  at  the  hearing  upon  the  demandant's  motion 
for  the  confirmation  of  the  commissioners'  report.  Walsh  i-.  Wilson, 
131  Mass.  535. 

1  Reed  v.  Dickerman,  12  Pick.  146;  Pratt  v.  Felton,  4  Cush.  174; 
Buffinton  v.  Fall  River  National  Bank,  113  Mass.  246.  See  Atherton 
V.  Corliss,  101  IMass.  40. 

Where  a  testator  devised  specific  parts  of  his  real  estate  to  his  wife 
in  fee,  and  bequeathed  to  her  all  his  personal  property,  and  ordered 
that  the  other  part  of  his  real  estate  should  be  disposed  of  as  the  law 
directs,  and  the  wife  accepted  the  devise  and  bequest  made  to  her,  it 
was  held,  that  she  was  not  entitled  to  dower  in  such  other  part  of  the 
real  estate.  Adams  v.  Adams,  5  Met.  278.  See  Phelps  v.  Phelps,  20 
Pick.  556 ;  Delay  v.  Yinal,  1  Met.  57. 

When  a  widow  died  soon  after  her  husband,  without  expressly 
■waiving  the  provision  for  her  in  his  will  in  lieu  of  dower,  her  accept- 


408       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  widow  may  make  her  election  to  take  her  dower 
effectual  by  filing  in  the  probate  office,  in  writing,  at  any 
time  within  one  year  after  the  probate  of  the  will,  her 
waiver  of  tlie  provisions  therein  made  for  her,  or  her 
claim  to  such  portion  of  her  husband's  estate  as  she 
would  have  been  entitled  to  it  if  he  had  died  intestate.^ 
When  any  legal  proceeding  is  instituted,  wherein  the 
validity  or  effect  of  the  will  is  drawn  in  question,  the  pro- 
bate court  may,  within  one  year  after  probate  of  the  will, 
on  petition  of  the  widow  and  after  notice,  authorize  her 
to  file  her  waiver  within  six  months  after  the  final  deter- 
mination of  such  proceeding.^  If  slie  is  insane  or  a  minor, 
her  guardian  may  make  the  waiver.^  If  she  makes  no 
such  waiver,  she  cannot  take  dower,  unless  it  plainly 
appears  from  the  will  that  the  testator  intended  that  she 
should  have  such  provisions  in  addition  to  her  dower. 

DOWER   BARRED   BY   JOINTURE    OR   PECUNIARY   PROVISION. 

A  woman  may  be  barred  of  her  dower  by  a  jointure 
settled  on  her,  with  her  assent,  before  her  marriage ;  pro- 
vided such  jointure  consist  of  a  freehold  estate  in  lands 
for  the  life  of  the  wife  at  least,  to  take  effect  in  possession 
or  profit  immediately  on  the  death  of  the  husband  ;  her 

ance  of  the  provision  in  the  will  was  presumed,  it  being  more  beneficial 
to  her  than  her  right  of  dower,     Merrill  v.  Emery,  10  Pick.  507. 

1  A  widow  within  six  months  after  the  probate  of  her  husband's 
will  filed  in  the  probate  court  a  writing  signed  by  her,  stating  that 
she  waived  the  provision  made  for  her  by  the  will,  "  and  hereby  gives 
notice  that  she  will  claim  her  dower  in  the  real  estate  of  the  deceased 
and  so  much  of  the  j  ersonal  estate  as  she  may  be  entitled  to  by  law." 
Held,  that  this  was  an  election  by  her  to  take  dower  in  her  husband's 
estate  and  that  she  was  not  entitled  to  one  half  of  said  estate  for  life. 
Mathews  v.  Mathews,  141  Mass.  511. 

2  R.  L.  c.  135,  §  16. 

8  R.  L.  c.  145,  §  33 ;  Kent  v.  Morrison,  153  Mass.  140. 


ASSIGNMENT   OF   DOWER   AND   OTHER    LIFE-ESTATES.     409 

assent  to  such  jointure  being  expressed,  if  she  is  of  full 
age,  by  her  becoming  a  party  to  the  conveyance  by  which 
it  is  settled,  and,  if  she  is  under  age,  by  her  joining  with 
her  father  or  guardian  in  such  conveyance.  Any  pecu- 
niary provision  made  for  the  benefit  of  an  intended  wife, 
and  in  lieu  of  dower,  if  so  assented  to,  will  bar  her  right 
of  dower  in  her  husband's  lands.* 

If  such  jointure  or  pecuniai'y  provision  is  made  before 
the  marriage,  and  without  the  assent  of  the  intended  wife, 
or  if  it  is  made  after  marriage,  it  will  bar  her  dower, 
unless  within  six  months  after  the  death  of  her  husband 
she  makes  her  election  to  waive  such  provision  and  be 
endowed  of  his  lands.  If  the  husband  dies  while  absent 
from  his  wife,  she  may  make  her  election  within  six 
months  after  notice  of  his  death,  and  in  all  cases  she  has 
six  months  for  that  purpose,  after  she  has  notice  of  the 
existence  of  such  jointure  or  provision.^ 

1  R.  L.  c.  132,  §§  6,  7;  Vincent  v.  Spooner,  2  Cush.  467  ;  Sullings  v. 
Richmond,  5  Allen,  187 ;  Tarbell  v.  Tarbell,  10  Allen,  278.  The  widow 
is  not  bound  by  an  ante-nuptial  contract  if  there  was  a  failure  to  per- 
form it  on  the  part  of  her  husband.  Sullings  v.  Sullings,  9  Allen,  23-1. 
See  Biitman  v.  Porter,  100  Mass.  337;  Freeland  v.  Freeland,  128  Mass. 
509 ;  Paine  v.  Hollister,  139  Mass.  144. 

If  the  wife's  assent  was  procured  by  fraud  to  an  ante-nuptial  con- 
tract by  way  of  jointure,  such  a  contract  cannot  be  ratified  by  her 
during  coverture,  and  may  be  avoided  by  her.  Peaslee  v.  Peaslee,  147 
Mass.  171. 

A  jointure  must  be  a  freehold  estate.  Hastings  v.  Dickinson,  7  Mass. 
153. 

A  widow  who  has  received  personal  property  under  the  will  of  one 
to  whom  her  husband  had  conveyed  land  of  which  he  was  seised  dur- 
ing coverture,  without  her  joining  in  the  conveyance,  is  not  barred  of 
her  dower  in  such  land.  Julian  v.  Boston,  Clinton,  &c.  R.  R.,  128 
Mass.  555. 

2  R.  L.  0.  182,  §  8 ;  Bigelow  v.  Hubbard,  97  Mass.  195 ;  Peaslee  v. 
Peaslee,  supra. 


410       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

No  provision  is  made  by  statute  as  to  the  manner  in 
which  the  widow  may  signify  her  election  in  such  cases, 
but  she  can  make  her  election  effectual  by  commencing 
proceedings  for  the  recovery  of  her  dower,  by  petition  or 
otherwise,  within  the  six  months. 

LIMITATION    OF   CLAIM    FOR   INTEREST  IN   REALTY. 

A  widow  is  not  entitled  to  make  claim  for  an  interest  in 
the  real  estate  of  her  deceased  husband  or  to  begin  an 
action  or  other  proceeding  for  the  recovery  thereof  unless 
the  same  is  made  or  commenced  within  twenty  years  after 
the  decease  of  the  husband  or  after  she  has  ceased  to 
occupy,  or  to  receive  the  profits,  of  her  share  of  such  real 
estate  ;  except  that  if  at  the  time  of  the  husband's  death 
the  widow  is  absent  from  the  state,  under  twenty-one 
years  of  age,  insane,  or  imprisoned,  she  may  make  such 
claim  or  commence  proceedings  at  any  time  within  twenty 
years  after  such  disability  ceases.^ 

PROCEEDINGS  IN  PROBATE  COURT. 

The  petition  for  the  assignment  of  dower  or  other  in- 
terest in  land  must  be  presented  to  the  probate  court  in 

^  R.  L.  c.  132,  §  13.  But  a  widow  who  for  more  than  twenty  years 
after  her  husband's  death  has  occupied,  with  his  heirs,  lands  of  which 
he  died  seised,  and  of  which  she  was  dowable,  or  has  without  their 
objection  received  the  rents  and  profits  of  such  land,  may  bring  a  peti- 
tion for  the  assignment  of  her  dower  whenever  the  heirs  seek  to  hold 
their  shares  of  the  rents  and  profits  in  severalty.  Hastings  v.  Mace, 
157  Mass.  499. 

Where  a  widow  has  not  continued  to  occupy  with  the  heirs  of  her 
deceased  husband  land  of  Mhich  he  died  seised,  or  to  receive  her  share 
of  the  rents  and  profits  thereof,  her  right  of  dower  is  not  saved  by  the 
fact  that  she  occupied  the  land  and  received  the  rents  and  profits  for 
several  years,  if  her  writ  is  not  brought  when  she  ceases  to  occupy  the 
land  or  to  receive  the  rents  and  profits,  and  not  until  more  than  twenty 
years  after  her  husband's  death.     O'Gara  v.  Neylon,  161  Mass.  140. 


ASSIGNMENT   OF    DOWER    AND    OTHER    LIFE -ESTATES.     411 

which  the  estate  of  the  husband  is  settled,  and  should  set 
forth  the  facts  that  the  husband  died  seised  of  certain 
lands  in  this  commonwealth,  that  the  petitioner  is  entitled 
to  dower  or  to  an  undivided  interest  in  such  land,  and  that 
her  right  is  not  disputed  by  the  heirs  or  devisees.  The 
names  and  residences  of  all  persons  interested  in  the  lands 
must  be  stated  in  the  petition.  If  any  of  the  persons  in- 
terested are  married  women,  the  names  of  their  husbands 
should  be  given ;  and  if  any  are  minors,  the  names  and 
residences  of  their  guardians. 

If  the  widow  omits  to  petition  within  one  year  from  the 
death  of  her  husband,  the  petition  may  be  made  by  the 
heirs  or  devisees  of  her  husband,  or  any  of  them,  or  by 
any  person  having  any  estate  in  the  lands  subject  to  dower 
or  to  such  interest,  or  by  the  guardian  of  any  such  heirs, 
devisees,  or  persons.^ 

The  petition  may  be  filed  in  the  probate  office  on  any 
day,  and  a  citation  thereon  issued  by  the  register. 

If  any  part  of  the  land  in  which  the  widow  claims  an 
undivided  interest  was  owned  by  the  husband  in  common 
with  any  other  person,  a  description  of  such  land  should 
be  annexed  to  the  petition,  and  the  proportion  owned  by 
the  husband,  and  the  names  for  the  co-tenants,  must  be 
stated.  The  petition  may  be  made  by  the  widow  or  by 
any  person  entitled  to  petition  for  assignment  of  her  in- 
terest.2  The  citation  issued  in  such  cases  must  be  served 
on  each  of  the  co-tenants,  together  with  a  copy  of  the 
description  of  the  land  annexed  to  the  petition. 

If  upon  the  hearing  it  appears  that  the  right  of  the 
widow  is  not  disputed  by  the  heirs  or  devisees,  the  court 
issues  a  warrant  to  three  discreet  and  disinterested  per- 
sons, authorizing  them  to  set  off  her  interest,  and  empow- 
1  R.  L.  c.  132,  §  9.  2  Ibid.  §  11. 


412       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

ering  them,  if  the  circumstances  of  the  case  require  it, 
first  to  make  partition  of  any  land  owned  by  the  husband 
as  tenant  in  common.^ 

PROCEEDINGS   OP   THE   COMMISSIONERS. 

Before  proceeding  to  set  off  the  interest  of  the  widow, 
or  to  make  partition,  the  commissioners  must  be  sworn  to 
perform  their  duty  faithfully  and  impartially  according  to 
their  best  skill  and  judgment.  The  oath  may  be  adminis- 
tered by  any  justice  of  the  peace,  and  a  certificate  thereof 
should  be  made  upon  the  warrant. 

If  partition  is  to  be  made  before  the  dower  can  be 
assigned,  the  commissioners  must  give  notice,  as  in  other 
cases  of  partition,  of  the  time  and  place  appointed  for  that 
purpose  to  all  persons  interested  who  are  known  and  are 
within  the  state,  that  they  may  be  present  if  they  see  fit. 

If  the  commissioners  are  to  assign  dower  only,  and 
there  is  no  partition  to  be  made,  they  are  not  required  by 
statute  to  give  notice  to  parties  interested,  but  it  is  advis- 
able to  give  such  notice  in  all  cases  of  assignments  of 
interests  in  real  estate. 

In  making  the  assignment,  all  the  lands  of  which  the 
husband  died  seised  are  first  to  be  appraised  by  the 
commissioners  at  their  present  value.  The  authority  of 
the  commissioners  extends  to  all  lands  of  which  the  hus- 
band died  seised  within  the  commonwealth.  The  lands 
should  be  appraised  with  reference  to  the  amount  of  annual 
income  they  produce  ;  it  not  being  the  object  of  the  law  to 

^  Any  warrant  or  commission  for  the  appraisement  of  an  estate, 
for  examining  the  claims  on  insolvent  estates,  for  the  partition  of  real 
estate,  or  for  the  assignment  of  dower  or  other  interests  in  real  estate, 
may  be  revoked  by  the  court  for  sufficient  cause ;  and  the  court  may 
thereupon  issue  a  new  commission  or  proceed  otherwise  as  the  circum- 
stances of  the  case  shall  require.     R.  L.  c.  162,  §  34. 


ASSIGNMENT   OF   DOWER   AND    OTHER   LIFE-ESTATES.     413 

assign  the  widow  one-third  of  the  land  in  quantity,  but  to 
give  her  such  a  part  as  will  yield  her  one-third  of  its 
entire  income.^ 

The  part  assigned  to  the  widow  must  be  set  off  by 
metes  and  bounds,  where  it  can  be  done  without  damage 
to  the  whole  estate.  But  where  the  estate  consists  of  a 
mill  or  other  tenement  which  cannot  be  divided  without 
damage  to  the  whole,  the  interest  of  the  widow  may  be 
assigned  out  of  the  rents  or  profits  thereof,  to  be  had  and 
received  by  the  widow  as  a  tenant  in  common  with  the 
other  owners  of  the  estate.^  The  widow  in  such  case  may 
have  either  an  alternate  occupancy  of  the  whole  estate,  or 
her  share  of  the  rents  and  profits.  The  ancient  rule  gave 
her  every  third  toll-dish  for  her  dower  in  a  mill,  or  the  use 
of  the  whole  mill  every  third  month  or  year.  It  is  not 
material  in  what  way  the  result  is  reached,  provided  the 
right  of  the  parties  are  plainly  defined  and  established.^ 
Assignments  of  this  kind  are  usually  made  by  agreement 
between  the  parties ;  a  pro})er  spirit  of  accommodation 
will  enable  them  to  reach  an  adjustment  more  satisfactory 
to  themselves  than  any  action  of  the  commissioners  is 
likely  to  prove. 

^  Conner  v.  Shepherd,  15  Mass.  167;  Leonard  v.  Leonard,  4  Mass. 
533.  The  fees  for  the  services  of  appraisers  of  estates  of  deceased  per- 
sons, appraisers  of  real  estate  taken  on  execution,  persons  appointed 
under  legal  process  for  assigning  dower  or  making  partition  of  real 
estate,  when  no  express  provision  is  made  for  the  compensation  there- 
for, shall  be  such  as  the  court  having  jurisdiction  of  the  case  may  deem 
to  be  just  and  reasonable.     R.  L.  c.  204,  §  23. 

'^  R.  L.  c,  132,  §  10.  But  a  covenant  to  pay  the  widow  money  by 
way  of  rent  in  consideration  of  her  forbearing  to  exercise  her  right  to 
dower,  is  a  personal  covenant,  and  cannot  run  with  the  land  so  as  to 
bind  the  assignee  of  the  (so-called)  lessee.  Croade  v.  Ingraham,  13 
Pick.  33. 

'  Russell  V.  Russell,  15  Gray,  159.    The  assignment  of  her  dower 


414       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

If  the  entire  estate  in  which  the  widow's  interest  is 
claimed  consists  of  a  dwelling-house,  certain  rooms  in  the 
house,  with  the  right  of  using  the  stairways,  halls,  etc., 
may  be  set  off  to  the  widow.  But  the  part  of  the  premises 
so  assigned  to  her  must  be  sufficient  for  her  substantial 
enjoyment  of  her  share  of  the  estate.^  It  seems  that  at 
common  law  the  widow  is  not  compelled  to  take  dower  so 
assigned,  but  may  claim  a  rent  issuing  out  of  the  estate.'^ 
But  the  practice  has  the  sanction  of  long  usage  in  this 
state. 

The  return  of  the  commissioners  to  the  probate  court 
should  give  a  detailed  report  of  their  proceedings  under 
the  warrant  directed  to  them.  The  fact  that  notice  was 
given  to  persons  interested,  and  the  manner  in  which  it 
was  given,  should  be  stated.  If  the  parties  notified  were 
present  at  the  time  and  place  appointed  for  making  the 
partition  or  assignment,  the  fact  should  appear  in  the 
return.  The  sums  at  which  the  several  parcels  of  land 
belonging  to  the  estate  were  appraised  should  be  expressed 
in  words  at  length ;  and  if  the  dower  is  set  off  by  metes 
and  bounds,  the  boundaries  should  be  so  described  as  to 
leave  no  uncertainty  as  to  the  portion  assigned. 

The  assent  of  all  parties  in  interest  to  the  assignment  as 

to  a  widow  of  a  person  who  acquired  a  homestead  which  existed  at  his 
death  of  certain  specific  rooms  in  the  house,  and  certain  specific  par- 
cels of  land,  with  rights  of  way  over  other  parts  of  the  house  and  over 
parts  of  the  remaining  land,  does  not  make  her  a  tenant  in  common  of 
the  servient  estate  with  the  heir  at  law  of  the  deceased,  so  as  to  bar 
her  of  an  estate  of  homestead  in  the  premises.  Weller  v.  Weller,  131 
Mass.  446. 

1  In  Howard  v.  Candish,  Palmer,  2G4,  the  sheriff  assigned  to  the 
widow  a  third  part  of  each  chamber,  and  chalked  out  her  part ;  this 
was  held  to  be  an  idle  and  malicious  assignment,  and  the  sheriff  was 
committed  to  prison.     Symmes  v.  Drew,  21  Pick.  278. 

2  White  V.  Story,  2  HiU  (N.  Y.),  513;  Park  on  Dower,  254. 


ASSIGNMENT    OF   DOWER   AND    OTHER   LIFE-ESTATES.     415 

made  by  the  cornraissioners  should  be  indorsed  on  the  re- 
turn ;  otherwise  a  citation  will  issue  to  them  before  final 
action  is  had.  The  assignment  of  dower  is  made  complete 
by  the  confirmation  by  the  court ^  of  the  return  of  the 
commissioners,  and  its  record  in  the  probate  office.  In 
cases  where  the  husband  was  a  co-tenant,  and  partition 
was  made  previous  to  the  assignment  of  dower,  the  return 
should  also  be  recorded  in  the  registry  of  deeds  for  the 
county  in  which  the  land  lies. 

WHEN   WIDOWS   MAY   BE   ENDOWED    ANEW. 

"  If  a  woman  is  lawfully  evicted  of  land  which  has  been 
assigned  to  her  as  dower  or  settled  upon  her  as  jointure,  or 
is  deprived  of  the  provision  made  for  her  by  will  or  otherwise 
in  lieu  of  dower,  she  may  be  endowed  anew  in  like  manner 
as  if  such  assignment,  jointure,  or  other  provision  had  not 
been  made;"^  as  when  she  has  been  endowed  of  lands 
mortgaged  by  her  husband  before  his  marriage,  and  has 
been  evicted  by  the  mortgage.^ 

A  widow  is  "  deprived  of  the  provision  made  for  her  by 
will,"  within  the  meaning  of  the  statute,  when  all  her  hus- 

^  The  confirmation  relates  back  to  the  time  of  the  assignment. 
Parker  v.  Parker,  17  Pick.  236 ;  Mansfield  v.  Pembroke,  5  Pick.  44^. 
A  judgment  of  the  probate  court  made  after  May  1,  confirming  the 
report  of  commissioners  filed  before  that  date,  assigning  a  parcel  of 
land  to  a  widow  for  life,  in  lieu  of  dower,  does  not  relate  back  to  the 
date  of  the  assignment  so  as  to  make  her  liable  to  the  remainderman 
for  taxes  assessed  on  May  1,  and  paid  by  him.  Kearns  v.  Cunniff, 
138  Mass.  434. 

A  dowress  in  occupation  of  land  may  in  an  action  of  trespass 
against  a  stranger  put  in  evidence,  on  the  question  of  her  possession, 
probate  proceedings  setting  off  the  land  to  her  which,  whether  valid 
or  invalid,  have  never  been  doubted.  Nickerson  v.  Thacher,  146  Mass< 
609. 

2  R.  L.  c.  132,  §  14. 

'  Scott  V.  Hancock,  13  Mass.  168. 


416       PROCEKDINGS  IN  THE  PROBATE  COURTS. 

band's  estate  is  taken  for  the  payment  of  his  debts ;  as, 
whei-e  the  husband  gave  his  wife  by  will  the  whole  of  his 
estate,  on  condition  that  she  should  pay  his  debts  and  lega- 
cies, and  the  estate  proved  to  be  insolvent.  She  is  entitled, 
in  such  case,  to  her  dower,  although  she  may  not  have  for- 
mally waived  the  provision  made  for  her  by  will,  the  pro- 
vision made  for  her  having  wholly  failed.  But  before  dower 
can  be  assigned  to  her,  it  must  be  ascertained  that  the  whole 
estate,  estimating  its  value  without  the  encumbrance  of  the 
widow's  dower,  is  not  sufficient  to  discharge  the  liabilities.^ 
And  it  is  no  objection,  in  such  case,  to  an  application  for 
an  assignment  of  dower,  that  a  previous  application  had 
been  made  and  refused  before  there  was  sufficient  evidence 
that  the  widow  would  be  deprived  of  the  provision  made  by 
the  will,  and  that  she  did  not  appeal  from  the  decree  of 
refusal.^ 

WRIT   OF   DOWER. 
[Revised  Laws,  c.  180.] 

"  Sect.  1.  A  woman  entitled  to  dower,  if  it  is  not  set 
out  to  her  by  the  heir  or  other  tenant  of  the  freehold,  to  her 
satisfaction  according  to  law  or  assigned  to  her  by  the  pro- 
bate court,  may  recover  the  same  by  writ  of  dower  as  here- 
inafter provided." 

1  Tliompson  v.  McGaw,  1  Met.  66. 

^  Tliompson  v.  McGaw,  1  Met.  66.  After  a  tenant  in  dower  has 
assigned  her  estate,  she  is  not  liable  to  the  assignees  of  the  reversion 
for  waste  committed  by  her  assignee.     Foot  v.  Dickinson,  2  Met.  611. 

A  conveyance  by  a  married  woman  during  her  husband's  lifetime 
of  her  inchoate  right  of  dower  is  void  as  to  any  party  other  than  he 
■who  holds  the  land  in  which  the  right  might  otherwise  be  asserted, 
and  does  not  estop  her  from  maintaining  a  writ  of  dower  against  the 
grantee,  even  although  he  has  not  been  repaid  the  sum  paid  by  him 
as  the  consideration  for  the  conveyance.  Mason  v.  Mason,  140  Mass. 
63 ;  Flynn  v.  Flynn,  171  Mass.  312,  314. 


WKIT  OF  DOWER.  417 

"  Sect.  2.  She  shall  demand  her  dower  of  the  person 
seised  of  the  freehold  at  the  time  when  she  makes  such 
demand,  unless  such  person  is  unknown  to  her  or  absent 
from  the  commonwealth.  She  shall  not  commence  her 
action  therefor  before  the  expiration  of  one  month,  nor 
after  the  expiration  of  one  year,  from  such  demand  ;  but 
she  may  make  a  new  demand  and  commence  an  action 
thereon." 

"  Sect.  3.  A  demand  of  dower  shall  be  sufficient  if  it  is 
in  writing,  signed  by  the  widow  or  by  her  agent  or  attor- 
ney, containing  a  general  description  of  the  land  in  which 
the  dower  is  claimed,  and  is  given  to  the  tenant  of  the  free- 
hold or  left  at  his  last  and  usual  place  of  abode." 

"  Sect.  4.  If  the  demandant  recovers  judgment  for  her 
dower,  she  shall  in  the  same  action  recover  damages  for  its 
detention,  which  shall  be  assessed  by  a  jury  under  the  direc- 
tion of  the  court,  unless  the  parties  file  in  court  a  written 
agreement  that  the  damages  shall  be  assessed  by  the  com- 
missioners as  hereinafter  provided."^ 

"  Sect.  5.  If  the  court  finds  that  the  demandant  is  enti- 
tled to  her  dower,  it  shall  award  the  interlocutory  judgment 
therefor  and  issue  its  warrant  to  three  disinterested  com- 
missioners to  set  out  said  dower  equally  and  impartially, 
and  as  conveniently  as  may  be,  and,  if  an  agreement  has 
been  filed  as  provided  in  the  preceding  section,  to  award 
damages  for  its  detention." 

"  Sect.  6.  Said  commissioners,  before  entering  upon  their 
duties,  shall  be  sworn  faithfully  and  impartially  to  execute 
the  warrant,  a  certificate  of  which  oath  shall  be  made  on 
the  warrant  by  the  person  who  administers  it.  They  shall 
give  notice  to  the  parties  of  the  time  and  place  appointed 
for  setting  out  the  dower,  and  all  of  the  commissioners  shall 

^  Harrington  r.  ConoUy,  116  Mass.  69. 

27 


418       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

meet  for  the  performance  of  any  of  their  duties,  but  a 
majority  may  act." 

"  Sect.  7.  The  commissioners  shall  make  and  sign  a 
report  of  their  doings,  witli  any  damages  assessed  by  them, 
and  return  it  with  their  warrant  to  the  court  from  which 
said  warrant  was  issued.  If  their  report  is  confirmed, 
judgment  shall  be  rendered  that  the  assignment  of  dower 
shall  be  firm  and  effectual  during  the  life  of  the  demandant, 
and  for  the  damages  as  assessed  by  said  commissioners," 

"  Sect.  8.  A  party  aggrieved  by  a  judgment  rendered 
under  the  provisions  of  section  five,  or  upon  a  report  of  the 
commissioners  under  the  provisions  of  the  preceding  sec- 
tion, may  appeal  therefrom  in  any  matter  of  law  apparent 
upon  the  record  to  the  supreme  judicial  court ;  but  an 
appeal  from  the  judgment  rendered  under  the  provisions  of 
the  preceding  section,  shall  not  draw  in  question  the  inter- 
locutory judgment." 

"  Sect.  9.  When  final  judgment  has  been  recovered  by 
the  demandant,  execution  shall  issue  thereon  for  possession 
and  for  costs,  and,  if  the  judgment  is  for  damages  also,  for 
damages." 

"  Sect.  10.  The  action  shall  be  brought  against  the  per- 
son who  is  tenant  of  the  freehold  at  the  time  when  it  is 
commenced.  If  the  demand  was  not  made  on  him,  he 
shall  be  liable  only  for  the  time  during  which  he  held  the 
land ;  but  if  the  demandant  recovers  her  dower  and 
damages  in  the  writ  of  dower,  she  may  thereafter  re- 
cover in  an  action  of  tort  against  the  prior  tenant  of  the 
freehold,  on  whom  her  demand  was  made,  the  rents  and 
profits  for  the  time  during  which  he  held  the  land  after 
the  demand."  ^ 

"  Sect.  11.  If  the  land  cannot  be  divided  without  damage 
1  Whitaker  v.  Green,  129  Mass.  417. 


PRESENT   VALUE   OF   DOWER    ESTATES.  419 

to  the  whole,  the  dower  may  be  assigned  out  of  the  rents 
or  profits,  which  shall  be  received  by  the  demandant  as 
tenant  in  common  with  the  other  owners." 

"  Sect.  12.  The  provisions  of  chapter  one  hundred  and 
thirty-two  relative  to  the  land  out  of  which  dower  may  be 
claimed  and  the  manner  in  which  it  may  be  barred,  and 
those  of  section  one  of  chapter  one  hundred  and  eighty-five 
relative  to  the  liability  of  the  tenant  for  waste,  shall  apply 
to  proceedings  under  this  chapter."  ^ 

PRESENT  VALUE  OP  DOWER  ESTATES. 

As  the  table  of  mortality  and  rate  of  interest  to  be  em- 
ployed in  valuing  dowers  is  not  fixed  by  law,  the  values 
according  to  two  tables  and  rates  are  given,  and  those 
which  they  exhibit  may  be  regarded  as  fixing  the  maximum 
and  minimum  limits  of  the  fair  valuation  of  such  an  estate 
when  the  life  on  which  it  depends  is  not  actually  impaired 
or  diseased.  If  the  life  is  unquestionably  sound,  the 
figures  should  be  based  on  the  Healthy  Districts  table, 
especially  if  the  age  of  the  person  is  advanced. 

The  table  on  the  following  pages  is  prepared  so  that  the 
value  of  a  life  estate  or  dower  may  be  computed  simply 
by  finding  the  present  age  of  the  person  on  whose  life  it 
depends  in  the  left  or  right  hand  column,  and  copying  the 
value  figures  on  the  same  line  of  an  estate  of  $100,  from 
the  appropriate  column  and  multiplying  them  by  the  ratio 
of  the  value  of  the  estate  in  question  to  lOO.^  For 
example :  — 

1  R.  L.  c.  180,  §§  1-12. 

2  In  determining  the  value  of  an  annuity  on  real  estate  for  the 
purpose  of  imposing  a  tax  on  collateral  legacies  and  successions,  the 
so-called  "  Actuaries'  Combined  Experienced  Tables  "  are  to  be  used. 
K.  L.  c.  15,  §  16. 


420 


PROCEEDINGS    IN   THE    PROBATE   COURTS. 


TABLE 

Showing  at  ages  15  to  98  tfie  Present  Value  of  a  Life  Estate  of  $100,  under  the  Collat- 
eral Succession  Law  [Chapter  15  of  Revised  Laws'\.    Also  the  Present  Value  of 
a  Widow's  Dower  in  an  Estate  qf  $100  according  to  two  Tables  of  Mortality  and 
Rates  of  Interest. 
Prepared  by  Walter  C.  Wright,  Actuary  of  the  New  England  Mutual  Life  Insurance  Co. 


Value  of  Dower. 

Present 
Age. 

Value  of  Life 

estate. 

Combined 

Experience 

Combined  Experience. 

English  Life  Healthy  Districts. 
Females. 

Present 
Age. 

4  per  cent.* 

4  per  cent. 

6  per  cent. 

4  per  cent. 

6  per  cent. 

15 

75.99 

25..33 

28.30 

25.64 

28.48 

15 

16 

7o.58 

25.19 

28.20 

25.48 

28.36 

16 

17 

75.16 

25.05 

28.11 

25.33 

28.24 

17 

18 

74.72 

24.91 

28.01 

25.19 

28.12 

18 

19 

74.27 

24.76 

27.90 

25.04 

28.02 

19 

20 

73.80 

24.60 

27.79 

24.91 

27.92 

20 

21 

73..S2 

24.44 

27.67 

24.76 

27.82 

21 

22 

72.83 

24.28 

'27.55 

24.63 

27.72 

22 

23 

72.30 

24.10 

27.42 

24.48 

27.62 

23 

24 

71.76 

23.92 

27.29 

24.33 

27.52 

24 

25 

71.21 

2.3.74 

27.15 

24.19 

27.42 

25 

20 

7064 

23.-55 

27.01 

24.04 

27.-32 

26 

27 

70.05 

23.35 

26.85 

23.86 

27.20 

27 

28 

69.44 

23.15 

26  69 

2.3.72 

27.08 

28 

29 

68.81 

22.94 

26.53 

23.56 

26.96 

29 

30 

68.16 

22.72 

26.35 

23..39 

26.84 

30 

31 

67.49 

22..50 

26.17 

23.20 

26.70 

31 

32 

66.79 

22.26 

25.98 

23.01 

26.56 

32 

33 

66.08 

22.03 

2.5.79 

22.83 

26.42 

83 

34 

65.34 

21.78 

25.58 

22.63 

26.26 

34 

35 

64.58 

21.53 

25.36 

22.41 

26.10 

35 

36 

63.79 

21.26 

25.14 

22.20 

25.92 

36 

37 

62.98 

20.99 

24.90 

21.99 

25.74 

37 

38 

62.14 

20.71 

24.65 

21.75 

25.56 

38 

39 

61.27 

20.42 

24.39 

21.51 

25.36 

39 

40 

60.37 

20.12 

24.12 

21.27 

25.16 

40 

41 

59.44 

19.81 

23.84 

21.00 

24.92 

41 

42 

58.48 

19.49 

23.54 

20.73 

24.70 

42 

43 

57.50 

19.17 

23.22 

20.45 

24.46 

43 

44 

56.48 

18.83 

22.90 

20.16 

24.20 

44 

45 

55.43 

18.48 

22.-56 

19.87 

23.92 

45 

46 

54.36 

18.12 

22.20 

19..55 

2.3.64 

46 

47 

53.27 

17.76 

21.85 

19.23 

2.3.-34 

47 

48 

52.16 

17..39 

21.47 

18.89 

23.02 

48 

49 

51.03 

17.01 

21.09 

18.55 

22.68 

49 

50 

49.88 

16.63 

20.70 

18.19 

22.-34 

50 

51 

48.72 

16.24 

20..30 

17.81 

21.98 

51 

52 

47.54 

15.85 

19.88 

17.43 

21.-58 

52 

53 

46.34 

15.45 

19.46 

17.04 

21.18 

63 

54 

45.13 

15.04 

19.03 

16.61 

20.76 

54 

*  Of  Life  Estate  of  $100.00,  or  of  an  Annuity  of  Si.OO. 


ASSIGNMENT    OF   DOWER   AND    OTHER   LIFE-ESTATES.       421 


Value  of  Dower. 

1 

Present 
Age. 

Value  of  Life 

estate. 

Combined 

Experience 

4  per  cent.* 

1 

Present 
Age. 

Combined  Experience. 

English  Life  Healthy  Districts. , 
Females. 

4  per  cent. 

6  per  cent. 

4  per  cent. 

6  per  cent. 

55 

43.91 

14.64 

18.59 

16.19 

20.30 

55 

56 

42.68 

14.23 

18.14 

15.75 

19.84 

56 

57 

41.44 

13.81 

17.69 

15.28 

19.34 

57 

58 

40.18 

13.39 

17.22 

14  83 

18.82 

58 

59 

38.92 

12.97 

16.75 

14.37 

18.32 

59 

60 

37.66 

12.55 

16.27 

13.92 

17.82 

60 

61 

36.39 

12.13 

15.79 

13.48 

17.34 

61 

62 

35.12 

11.71 

15.30 

13.03 

16.82 

62 

63 

33.86 

11.29 

14.81 

12.59 

16.32 

63 

64 

32.60 

10.87 

14.31 

12.15 

15.82 

64 

65 

31.34 

1045 

13.82 

11.71 

15.30 

65 

66 

30.10 

1003 

13.32 

11.27 

14.80 

66 

67 

28.87 

9.62 

12.83 

10.83 

14.28 

67 

68 

27.65 

9.22 

1233 

10.40 

13.76 

68 

69 

26.45 

8.82 

11.84 

9.96 

13.24 

69 

70 

25.27 

8.42 

11. .36 

9.55 

12.72 

70 

71 

24.10 

8.03 

10.87 

912 

1222 

71 

72 

22.96 

7.65 

10.40 

8.71 

11.70 

72 

73 

21.84 

7.28 

9.92 

8.29 

11.20 

73 

74 

20.74 

6.91 

9.46 

7.91 

10.70 

74 

75 

19.66 

6.55 

9.00 

7.51 

10.22 

75 

76 

18.60 

6.20 

8.55 

7.13 

9.74 

76 

77 

17.58 

5.86 

8.10 

6  76 

9.26 

77 

78 

16.57 

5.52 

7.66 

6.40 

8.80 

78 

79 

15.60 

5.20 

7.24 

6.05 

8.36 

79 

80 

14.64 

4.88 

6  82 

5.72 

7.92 

80 

81 

1372 

4.57 

6.41 

5.40 

7. -50 

81 

82 

12.81 

4.27 

6.00 

5.09 

7.10 

82 

83 

11.92 

3.97 

5.61 

4.80 

6.70 

83 

84 

11.04 

3.68 

5.21 

4.52 

6.32 

84 

85 

10.18 

3.39 

4.82 

4.25 

5.96 

85 

86 

9.31 

3.10 

4.42 

3.99 

5.62 

86 

87 

8.46 

2.82 

4.03 

3.75 

5.28 

87 

88 

7.60 

2.53 

3.63 

3.52 

4.96 

88 

80 

6.76 

2.25 

3.24 

3.29 

4.68 

89 

90 

5.94 

1.98 

2  86 

3.09 

4.38 

90 

91 

5.14 

1.71 

2.48 

2.89 

4.12 

91 

92 

4..S6 

1.45 

2.11 

2.71 

3.86 

92 

93 

362 

1.21 

1.76 

2.53 

3.62 

93 

94 

2.95 

.98 

1.43 

2.36 

3.38 

94 

95 

2.34 

.78 

1.14 

2.21 

3.18 

95 

96 

1.85 

.62 

.90 

2.07 

2.96 

96 

97 

1.47 

.49 

.72 

1.93 

2.78 

97 

98 

.96 

.32 

.47 

1.80 

2.60 

98 

*  Of  Life  Estate  of  $100.00,  or  of  aii  Annuity  of  5?1.00. 


422       PROCEEDINGS  IN  THE  PKOBATE  COURTS. 

Suppose  a  widow  whose  age  is  30  is  entitled  to  dower  in 
an  estate  worth  -$6,000  :  opposite  the  number  30,  represent- 
ing the  age,  is  the  sum  $22.72  (see  Combined  Experience 
cohiran  at  four  per  cent)  ;  multiply  that  sum  by  60  (the 
number  of  hundreds  in  6,000),  and  the  product  is  81,363.20, 
which  is  the  present  value  of  her  dower  at  four  per  cent 
according  to  the  Combined  Experience  tables.  At  the 
same  per  cent,  according  to  the  English  Healthy  Districts 
table,  it  is  $1,403.40. 

ESTATES   OF   HOMESTEAD. 

Every  householder  having  a  family  may  have  an  estate 
of  homestead,  to  the  extent  in  value  of  eight  hundred 
dollars,^  in  the  farm  or  lot  of  land  and  buildings  thereon, 
owned  or  rightly  possessed  by  lease  or  otherwise  and 
occupied  by  him  as  a  residence,  and  such  estate  is  exempt 
from  attachment,  levy  on  execution,  and  sale  fOr  the  pay- 
ment of  his  debts  or  legacies,  and  from  the  laws  of  con- 
veyance, descent,  and  devise  except  as  provided  in  chapter 
131  of  the  Revised  Laws.^  To  create  such  estate  of  home- 
stead, the  fact  that  it  is  designed  to  be  held  as  a  homestead 

^  The  householder's  estate  of  homestead,  once  acquired,  is  not 
defeated  by  the  death  or  removal  of  his  wife  and  children  from  the 
premises,  or  by  her  obtaining  a  divorce  from  bed  and  board  and  a 
decree  giving  her  the  custody  of  the  children,  if  he  continues  to  reside 
thereon.  She  cannot  by  her  separate  act  deprive  him  of  such  estate. 
Doyle  V.  Coburu,  6  Allen,  71 ;  Silloway  i;.  Brown,  12  Allen,  30. 

^  No  estate  of  homestead  exists  in  land  held  in  common  and  undi- 
vided. Thurston  v.  Maddocks,  6  Allen,  427;  Silloway  v.  Brown,  12 
Allen,  30;  Bemis  v.  Driscoll,  101  Mass.  418;  Holmes  v.  Winchester, 
138  Mass.  542,  and  cases  cited. 

The  estate  is  not  necessarily  limited  to  that  part  of  a  dwelling- 
house  occupied  by  the  family,  but  may  exist  in  the  whole  of  a  house, 
some  rooms  of  which  are  to  let  to  tenants.  Mercier  v.  Chace,  11  Allen, 
194.     It  may  exist  in  a  country  hotel.    Lazell  v.  LazeU,  8  Allen,  575. 


ESTATES   OF   HOMESTEAD.  423 

must  be  set  forth  in  the  deed  by  which  the  property  is 
acquired  that  it  is  designed  to  be  held  as  a  homestead  ; 
or,  after  the  title  has  been  acquired,  such  design  must  be 
declared  by  writing  duly  signed,  sealed,  acknowledged,  and 
recorded  in  the  registry  of  deeds  for  the  county  or  district 
in  whicii  the  property  is  situated.  The  acquisition  of  a 
new  estate  of  homestead  will  defeat  and  discharge  any 
such  previous  estate. 

The  right  of  homestead  may  be  released  by  a  deed  in 
which  the  wife  of  the  householder  joins  for  the  purpose  of 
releasing  it ;  ^  but  if  it  exists  at  the  time  of  his  death,  it 
"  shall  continue  for  the  benefit  of  his  widow  and  minor 
cliildren,  and  be  held  and  enjoyed  by  them,  if  some  one 
of  them  occupies  the  premises,  until  the  youngest  child 
is  twenty-one  years  of  age,  and  until  the  marriage  or 
death  of  the  widow."  ^  And  the  estate  may  be  set  off  to 
the  parties  entitled  thereto  by  metes  and  bounds,  in  the 
same  manner  that  dower  may  be  set  off  to  a  widow.^ 

^  A  wife  does  not  "  join  in  a  deed  of  conveyance  "  of  a  homestead 
by  simply  inserting  her  name  in  the  final  clause  of  the  deed,  and  sign- 
ing and  sealing  it.  Greenough  v.  Turner,  11  Gray,  332.  See  Wales 
V.  Coffin,  13  Allen,  213 ;  Tirrell  v.  Kenney,  137  Mass.  30. 

An  estate  of  homestead  cannot  be  lost  by  mere  abandonment  until 
a  new  homestead  is  acquired  elsewhere.  Woodbury  v.  Luddy,  1-4  Allen, 
1;  Abbott  V.  Abbott,  97  Mass.  13G. 

2  R.  L.  c.  131,  §  8.  The  right  of  possession  and  enjoyment  will  be 
in  such  only  of  the  parties  who  have  title  as  remain  in  occupation  of 
the  premises.  Abbott  v.  Abbott,  97  Mass.  136;  Paul  v.  Paul,  136 
Mass.  287.  The  use  of  a  room  in  the  house  by  the  widow,  for  the 
purpose  of  storing  furniture,  is  a  sufficient  occupation.  Brettun  v. 
Fox,  100  Mass.  234. 

The  estate  is  not  defeated  by  the  death  of  the  wife  and  the  removal 
of  the  children,  if  the  householder  continues  it  as  his  home.  Silloway 
V.  Brown,  12  Allen,  30. 

The  estate  must  also  be  actually  occupied  as  a  residence.  Lee  v. 
Miller,  11  Allen,  37. 

3  K.  L.  c.  lol,  §  9. 


424       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

When  an  estate  of  homestead  exists  in  property  in 
which  other  parties  have  an  interest,  the  party  entitled 
to  the  homestead,  or  any  other  party  interested  in  such 
property,  may  have  partition  thereof  like  tenants  in 
common.^ 

The  widow  takes  her  homestead  estate  in  addition  to 
her  dower.  The  dower  may  be  assigned  to  her  out  of  the 
whole  real  estate  of  her  husband,  and  the  estate  of  home- 
stead from  the  estate  remaining  after  the  assignment  of 
dower.2 

The  probate  court  has  no  jurisdiction  to  set  out  an 
estate  of  homestead,  if  the  right  to  it  is  disputed  by  the 
heirs  or  devisees.^ 

The  widow,  and  the  guardian  of  the  minor  children, 
when  he  has  obtained  a  license  therefor  from  the  probate 
court  as  in  the  case  of  sales  of  real  estate  of  minors,  may 
join  in  a  sale  of  such  estate  of  homestead;  or,  if  there 
is  no  widow  entitled  to  such  rights  therein,  the  guardian 
upon  such  license  may  make  sale  thereof ;  and  the  widow 
may  make  such  sale  if  there  are  no  minor  children.  The 
purchaser  shall  have  the  right  to  enjoy  and  possess  the 
premises  for  the  full  time  that  the  widow  and  children 
or  either  of  them  might  have  continued  to  hold  and 
enjoy  the  same  if  no  sale  had  been  made.     The  probate 

1  R.  L.  c.  131,  §  11. 

2  Cowdrey  v.  Cowdrey,  131  Mass.  186  ;  Weller  v.  Weller,  ibid.  446; 
Mercier  v.  Chace,  11  Allen,  194;  Monk  v.  Capen,  5  Allen,  146. 

8  Woodward  v.  Lincoln,  9  Allen,  239.  A  widow  who  has  acquired 
a  right  of  homestead  in  premises  worth  less  than  eight  hundred  dol- 
lars, and  is  in  the  occupation  thereof  at  the  time  of  her  husband's 
death,  may  continue  such  occupation,  and  avail  herself  of  her  right  of 
homestead  as  a  defence  against  one  who  claims  title  under  her  hus- 
band, although  her  homestead  has  not  been  set  out  to  her  by  the 
court.  Parks  v.  Reilly,  5  Allen,  77.  See  Easthara  v.  Barrett,  152 
Mass.  56. 


RIGHT   OF   HOMESTEAD   OF   INSOLVENT    DEBTOKS.         425 

court  may  apportion  the  proceeds  of  the  sale  among  the 
parties  entitled  thereto.^ 

RIGHT   OP   HOMESTEAD    OP   INSOLVENT   DEBTORS. 

When  the  property  of  a  debtor  is  assigned  under  the 
laws  in  relation  to  insolvent  debtors,  and  such  debtor 
claims,  and  it  appears  to  the  court  wherein  the  proceed- 
ings in  insolvency  are  pending  that  he  is  entitled  to  hold 
a  part  thereof  as  a  homestead,  and  that  the  property  in 
which  such  estate  of  homestead  exists  is  of  greater  value 
than  eight  hundred  dollars,  the  court  shall  cause  the 
property  to  be  appraised  by  three  impartial  and  discreet 
men,  one  of  whom  shall  be  appointed  by  the  insolvent,  one 
by  the  assignee,  and  the  third  by  the  court ;  or  in  case 
either  the  assignee  or  insolvent  neglects  to  appoint,  the 
court  shall  appoint  for  him.  The  persons  so  appointed 
shall  be  duly  sworn  faithfully  and  impartially  to  appraise 
the  property,  and  shall  proceed  to  appraise  and  set  off  an 
estate  of  homestead  in  the  same  to  the  insolvent  debtor 
in  the  manner  prescribed  in  case  of  a  judgment  debtor  ; 
and  the  residue  shall  vest  in  and  be  disposed  of  by  the 
assignee  in  the  same  manner  as  property  not  exempt  by 
law  from  levy  on  execution.  The  appraisers  shall  be 
entitled  to  the  same  fees,  to  be  paid  out  of  the  estate  in 

^  R.  L.  c.  131,  §  10.  A  widow  who  left  an  estate  in  which  she  had 
a  right  of  homestead  which  she  did  not  know  of,  was  held  to  have  lost 
her  right  of  homestead.  Paul  v.  Paul,  136  Mass.  286 ;  Foster  v.  Le- 
land,  141  Mass.  187.  Where  an  estate  of  homestead  has  been  acquired 
in  land  of  greater  value  than  the  limit  of  the  homestead  exemption, 
and  the  surplus  has  been  alienated  by  sale  or  transfer  according  to 
law,  the  owner  of  the  residue  may  maintain  a  writ  of  entry  to  recover 
the  land  subject  to  the  right  of  homestead.  Copelaud  v.  Sturtevant, 
156  Mass.  114.  An  estate  of  homestead  does  not  exist  in  lands  held 
in  common  and  undivided.     Holmes  v.  Winchester,  138  Mass.  542. 


426       PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

insolvency,    as   are    allowed   to  appraisers  of   real   estate 
seized  upon  execution. 

If  a  judgment  creditor  requires  an  execution  to  be  levied 
on  property  claimed  by  the  debtor  to  be  as  a  homestead 
exempt  from  such  levy,  and  if  the  officer  holding  such 
execution  is  of  opinion  that  the  premises  are  of  greater 
value  than  eight  hundred  dollars,  appraisers  shall  be  ap- 
pointed to  appraise  the  property  in  the  manner  provided 
by  law  for  an  appraisal  in  the  case  of  the  levy  of  an  exe- 
cution on  real  estate.  If  in  the  judgment  of  the  appraisers 
the  premises  are  of  greater  value  than  eight  hundred 
dollars,  they  shall  set  off  to  the  judgment  debtor  so 
much  of  the  premises,  including  the  dwelling-house  in 
whole  or  in  part,  as  shall  appear  to  them  to  be  of  the 
value  of  eight  hundred  dollars ;  and  the  residue  of  the 
property  shall  be  levied  upon  and  disposed  of  in  like 
manner  as  real  estate  not  exempt  from  levy  on  execution ; 
and  if  the  property  levied  on  is  subject  to  a  mortgage,  it 
may  be  set  off  or  sold  subject  to  the  mortgage  and  to  the 
estate  of  homestead  in  like  manner  as  land  subject  to  a 
mortgage  only.^ 

ASSIGNMENT   OF   OTHER   ESTATES    FOR   LIFE. 

When  a  widow  is  entitled  by  the  provisions  of  law, 
by  deed  of  jointure,  or  under  the  will  of  her  husband,  to 
an  undivided  interest  in  his  real  estate,  either  for  life  or 
during  widowhood,  if  her  right  is  not  disputed  by  his 
heirs  or  devisees,  such  interest  may  be  assigned  to  her,  in 
■whatever  counties  the  lands  lie,  by  the  probate  court  for 
the  county  in  which  the  estate  of  her  husband  is  settled. 
The  assignment  may  be  made  upon  her  petition,  or,  if  she 

1  R.  L.  c.  131,  §§  12, 13. 


ASSIGNMENT   OF   DOWER    AND    OTHER    LIFE-ESTATES.     427 

does  not  petition  within  one  year  from  the  death  of  her 
husband,  upon  petition  by  an  heir  or  devisee  of  her  hus- 
band by  any  person  having  an  estate  in  the  lands  subject 
to  such  interest,  or  by  the  guardian  of  such  heir,  devisee, 
or  person.  The  interest  of  the  widow  is  set  off  by  metes 
and  bounds,  when  it  can  be  so  done  without  damage  to 
the  whole  estate.  But  when  the  estate  consists  of  a  mill 
or  other  tenement  which  cannot  be  divided  without  damage 
to  the  whole,  her  interest  may  be  assigned  out  of  the 
rents  or  profits  to  be  received  by  the  widow  as  a  tenant  in 
common  with  the  other  owners  of  the  estate.^ 

1  R.  L.  c.  132,  §§  9,  10  ;  Guckian  v.  Riley,  135  Mass.  73 ;  Fuller  v. 
Rust,  153  Mass.  50;  Proctor  v.  Clark,  154  Mass.  50. 


CHAPTER  XIX. 

PROBATE  BONDS. 
AS   TO    BONDS   GENERALLY.^ 

The  sureties  in  every  bond  given  to  the  judge  of  the 
probate  court  must,  except  as  provided  in  section  sixty-one 
of  chapter  one  hundred  and  eighteen  of  the  Revised  Laws 
(authorizing  the  acceptance  as  surety  of  a  qualified  foreign 
fidelity  insurance  company),  be  inhabitants  of  this  com- 
monwealth, and  such  as  the  judge  or  register  approves  ;2 
and  no  bond  required  to  be  given  to  the  judge,  or  filed  in 
the  probate  office,  is  sufficient,  unless  examined  and  ap- 

*  As  to  the  conditions  of  bonds  given  to  the  judge  of  probate,  in  the 
course  of  proceedings  in  the  probate  court,  see  the  chapters  referring 
to  the  several  proceedings  in  which  bonds  are  required. 

2  R.  L.  c.  149,  §  9. 

The  money  paid  to  fidelity  insurance  companies  or  to  any  person 
acting  as  surety  on  an  official  bond  may  be  allowed  as  a  charge  against 
the  estate.     R.  L.  c.  150,  §  15. 

A  bond  without  surety,  given  by  an  administrator  and  approved  by 
the  judge  of  probate  without  notice  to  creditors,  is  not  such  a  bond  as 
the  statutes  of  this  commonwealth  require.  Abercrombie  v.  Sheldon, 
8  Allen,  532. 

A  probate  bond  in  the  ordinary  form  of  a  trustee's  bond  filed  in  the 
registry  of  probate,  satisfactory  to  the  beneficiaries  and  accepted  orally 
by  the  judge  of  probate,  but  never  approved  by  him  in  writing  as  re-, 
quired  by  P.  S.  c.  143,  §  2  (now  R.  L.  c.  149,  §  10),  is  valid  at  common 
law,  and  the  sureties  are  liable  upon  it  in  a  suit  brought  in  the  name 
of  the  judge.  Whether  such  bond  is  invalid  as  a  statutory  bond, 
qucere.     Mclntire  v.  Linehau,  178  Mass.  263. 


PROBATE   BONDS.  429 

proved  by  the  judge  or  by  the  register,  and  his  approval 
thereof  under  his  official  signature  is  written  thereon/ 

Whenever  bonds  are  required  to  be  given  to  the  judge 
of  a  probate  court  by  two  or  more  persons  acting  jointly 
as  executors,  administrators,  trustees,  or  otherwise,  such 
persons  may  give  either  separate  or  joint  bonds.'-^ 

All  bonds  given  to  the  probate  court  must  be  in  such 
sum  as  the  judge  shall  order,  and  made  payable  to  the 
judge  and  his  successors  in  office ;  in  cases  where  the 
office  is  vacant,  to  the  acting  judge  and  his  successors.^ 

1  R.  L.  c.  149,  §  10.  An  executor  or  administrator  shall,  when 
exempt  from  giving  a  surety,  give  his  own  personal  bond,  with  condi- 
tions as  prescribed  by  law ;  but  the  probate  court  may  at  or  after 
granting  of  letters  testamentary  or  letters  of  administration  require  a 
bond,  with  suflBcient  surety  or  sureties. 

Every  executor  or  administrator  who  neglects  to  give  bond,  with 
surety  or  sureties,  when  required  by  the  probate  court  within  such 
time  as  it  orders,  shall  be  found  to  have  declined  or  resigned  the  trust. 
R.  L.  c.  149,  §§  3,  8. 

An  executor's  bond  which  is  signed  by  two  sureties  who  are  inhab- 
itants of  this  commonwealth,  and  by  a  third  person  who  is  an  inhab- 
itant of  another  state,  if  approved  by  the  probate  court,  is  sufficient  to 
qualify  him  to  act.  The  additional  surety  may  add  to,  but  cannot 
impair,  the  value  of  the  contract.     Clarke  v.  Chapin,  7  Allen,  425. 

An  executor's  bond,  approved  by  the  judge,  in  which  the  sureties 
are  each  bound  in  half  the  sum  in  which  the  principal  is  bound,  is  not 
for  that  cause  void,  but  is  binding  on  the  obligors,  and  sufficient  to 
give  effect  to  the  executor's  appointment,  and  to  render  his  acts  as 
such  valid ;  but  it  seems  that  the  supreme  court,  on  an  appeal  from 
the  decree  of  the  judge  of  probate  approving  a  bond  in  that  form, 
would  not  countenance  such  a  departure  from  the  usual  course  of 
proceeding.     Baldwin  v.  Standish,  7  Cush.  207. 

^  R.  L.  c.  149,  §  11.  An  executor  who  gives  a  separate  bond  is 
not  liable  for  a  loss  caused,  without  negligence  on  his  part,  by  the 
default  of  his  co-executor.  McKim  v.  Aulbach,  130  Mass.  481.  See 
Ames  V.  Armstrong,  106  Mass.  15. 

3  R.  L.  c.  164,  §  8.  Any  bond  given  by  an  executor,  admin- 
istrator, guardian,  or  trustee  whose  appointment  is  invalid  by  reason 
of  an  irregularity  or  of  want  of  jurisdiction  or  authority  in  the  court 


430       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

In  practice,  particularly  when  the  sureties  reside  at 
a  distance  from  the  place  of  holding  the  probate  court, 
bonds  are  executed  in  anticipation  of  the  probate  of  the 
will,  or  other  decree  I'equiring  a  bond  to  be  given,  and 
are  held  in  readiness  to  be  offered  for  approval  whenever 
the  decree  is  passed.  When  this  course  is  followed,  care 
should  be  taken  by  the  party  offering  the  bond  that  the 
instrument  be  unexceptionable,  both  as  to  the  penal  sum 
and  the  sufficiency  of  the  sureties.  The  amount  of  the 
penalty  of  the  bond  should  be  proportioned  to  the  extent 
of  the  interest  to  be  protected,  regard  being  had  to  the 
situation  of  the  estate  and  to  all  the  circumstances  of 
the  case.^  In  a  majority  of  cases,  the  sum  named  in  the 
bond  should  be  double  the  value  of  the  property  which 
the' bond  is  intended  to  secure;  and  the  executor,  admin- 
istrator, or  trustee  must  certify  on  the  back  of  the  bond 
the  value  of  the  real  estate  and  of  the  best  personal 
property,  to  the  best  of  his  knowledge  and  belief. 

WHEN   NEW   BONDS   MAY   BE   REQUIRED. 

When  the  sureties  or  the  penal  sum  in  a  bond  given  to 
the  probate  court  are  insufficient,  the  supreme  judicial  court, 
or  the  probate  court,  after  notice  to  the  principal  in  the 
bond,  may  require  a  new  bond  with  such  surety  or  sureties, 
and  in  such  penal  sum,  as  the  court  shall  direct.'^ 

making  such  appointment,  shall  be  held  valid  and  binding  both  on  the 
principals  and  the  sureties.     R.  L.  c.  148,  §  25. 

1  In  an  application  by  a  foreigner  for  ancillary  letters  of  adminis- 
tration, for  the  purpose  of  collecting  a  debt,  a  bond  was  taken  by  the 
supreme  court  of  probate  in  $5,000,  which  amount  was  less  than  that 
of  the  debt  to  be  collected,  it  appearing  that  the  heirs  and  foreign 
creditors  were  secured  under  the  laws  of  the  intestate's  domicile,  and 
that  there  were  probably  no  creditors  in  the  United  States.  Picquet, 
Appellant,  5  Pick.  65. 

2  R.  L.  c.  149,  §  14;  Brooks  v.  Whitmore,  142  Mass.  401.     The 


PROBATE    BONDS.  431 

Any  surety  may,  upon  his  petition  to  the  supreme  judi- 
cial court,  or  the  probate  court,  be  discharged  from  all 
further  responsibility,  if  the  court,  after  due  notice  to  all 
persons  interested,  deems  it  reasonable  and  proper ;  and 
the  principal  will  thereupon  be  required  to  give  a  new 
bond.^ 

If  the  principal  does  not  give  such  new  bond  within  such 
time  as  is  ordered  by  the  court,  he  shall  be  removed  from 
his  trust,  and  some  other  person  appointed  in  his  stead.^ 

In  case  of  the  marriage  of  a  woman  who  is  executrix, 
administratrix,  guardian,  or  trustee,  her  sureties  have 
the  right,  on  petition  to  the  probate  court  in  which  her 
bond  is  filed,  to  be  released  from  any  further  liability  on 
her  bond,  beyond  accounting  for  and  paying  over  the 
money  or  property  already  in  her  hands ;  and  if  her  sure- 
ties are  so  released,  she  will  be  required  to  give  a  new 
bond  to  the  satisfaction  of  the  court.^ 

guardian  of  a  minor  who  had  given  bond  in  the  form  reqnired  by  law, 
having  represented  to  tlie  judge  of  probate  that,  since  his  appoint- 
ment, his  ward  had  received  a  legacy  exceeding  in  amount  the  penalty 
of  the  bond,  and  having  suggested  that  the  judge  should  make  such 
order  in  the  premises  as  to  law  and  justice  might  appertain,  the  judge 
ordered  him  to  file  a  new  bond  in  a  larger  sura,  and  the  guardian  filed 
a  new  bond  accordingly,  with  a  new  surety.  Held,  that  both  bonds 
were  valid,  that  the  sureties  were  to  be  deemed  co-sureties,  and  that, 
being  sureties  in  different  sums,  they  were,  as  between  themselves, 
compellable  to  contribute  in  proportion  to  the  different  penalties  of 
their  respective  bonds.  Loring  v.  Bacon,  3  Cush.  465  ;  Brooks  v. 
Whitmore,  139  Mass.  358  ;  Forbes  v.  Harrington,  171  Mass.  389. 

1  R.  L.  c.  149,  §  15;  Brooks  v.  Whitmore,  142  Mass.  401.  If, 
without  the  assent  or  knowledge  of  a  surety,  his  co-surety  is  discharged 
from  all  further  respon.'^ibility,  and  a  new  bond  is  given  by  the  princi- 
pal and  approved  by  the  court,  the  first-named  surety  is  also  discharged 
from  liability  for  further  acts  of  the  principal,  although  the  new  bond 
recites  that  it  is  in  addition  to  the  first  bond.  McKim  r.  Demmon, 
130  Mass.  404. 

2  R.  L.  c.  149,  §  16.  8  R.  L.  c.  149,  §  19. 


432       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

When  an  executor,  administrator,  guardian,  or  trustee 
is  licensed  to  sell  real  estate,  and  the  bond  given  by  him 
at  the  time  of  his  appointment  appears  to  the  court  to 
be  insufficient,  he  may  be  required  to  give  an  additional 
bond.^ 

When  a  new  bond  is  so  required,  the  sureties  in  the 
prior  bond  are  liable  for  all  breaches  of  the  condition 
committed  before  the  new  bond  is  approved  by  the 
judge.' 

SUITS   ON   BONDS   OF  EXECUTORS   AND   ADMINISTRATORS. 

Suits  on  probate  bonds  are  brought  in  the  name  of  the 
judge  of  the  probate  court,^  and,  except  in  certain  classes 
of   cases  specified   by  the  statute,^  are  brought  only   on 

1  R.  L.  c.  149,  §  13.  As  to  the  removal  of  executors  and  others  for 
failing  to  file  a  new  bond  when  ordered,  see  chap.  viii. 

2  Ibid.  §  17  ;  McKim  v.  Bartlett,  129  Mass.  226  ;  McKim  r.  Blake, 
132  Mass.  343. 

8  When  the  judge  is  obligor  as  principal  or  surety  in  a  bond  given 
to  a  former  judge  of  the  court,  suit  may  be  brought  upon  the  bond  in 
the  name  of  the  judge  mentioned  therein,  his  executors  or  adminis- 
trators.    R.  L.  c.  149,  §  24. 

4  Ibid.  §§  20-22;  Fall  River  v.  Riley,  138  Mass.  338;  Fuller  v. 
Connelly,  142  Mass.  230. 

If  an  administrator  suffers  judgment  to  be  recovered  against  him 
before  he  represents  the  estate  insolvent,  he  must  pay  the  full  amount 
of  the  judgment,  even  if  the  estate  is  insolvent,  and  he  and  his  sureties 
are  liable  to  a  suit  by  the  judgment  creditor  on  the  bond.  Kewcomb 
V.  Goss,  1  Met.  333.  This  decision,  however,  is  questioned  in  Fuller 
r.  Connelly,  142  Mass.  230. 

If  a  probate  bond  is  altered  by  the  judge  of  probate  without  the 
consent  of  the  sureties,  they  will  be  no  longer  bound  by  it.  Howe  v. 
Peabody,  2  Gray,  556. 

In  an  action  on  a  bond  against  an  administrator  and  his  sureties  for 
a  refusal  to  pay  a  judgment  recorded  against  him,  such  judgment, 
if  not  obtained  by  fraud  or  collusion,  is  conclusive  on  the  sureties, 
in  regard  to  all  matters  of  defence  affecting  the  merits  of  the  claim  as 
between  the  parties  to  the  judgment.     Heard  v.  Lodge,  20  Pick.  53 ; 


PROBATE   BONDS.  433 

leave  granted  bj  the  court.  There  are  three  cases,  and 
only   three,  in  which  a  person  can  sue  the   bond  of  an 

White  V.  Weatherbee,  126  Mass.  452;  McKim  v.  Glover,  1G7  Mass. 
280  ;  McKim  v.  Haley,  173  Mass.  114. 

But  the  sureties  are  not  liable  on  a  judgment  obtained  ou  a  demand 
which  was  barred  by  the  special  statute  of  limitations.  Dawes  v. 
Shed,  15  Mass.  0  ;  Robinson  i\  Hodge,  117  Mass.  222. 

If  the  payment  of  a  legacy  is  charged  upon  land  devised  to  a  per- 
son who  is  also  the  executor  of  the  will,  and  the  legatee  joins  in  a 
mortgage  of  the  land  given  by  the  devisee  to  secure  a  sum  of  money 
borrowed  for  the  latter's  personal  use,  and  the  mortgagee  afterwards 
sells  the  land  under  a  power  contained  in  the  mortgage,  and  applies 
the  proceeds  of  the  sale  to  the  payment  of  the  mortgage  debt,  the 
legatee  loses  his  right  to  proceed  against  the  land  to  enforce  payment 
of  his  legacy,  and  an  action  therefor  cannot  be  maintained  for  his 
benefit  against  a  surety  on  the  executor's  bond.  Thayer  v.  Finnegau, 
134  Mass.  62. 

The  failure  of  an  executor  who  as  sole  legatee  under  the  will,  there 
being  no  creditors,  is  the  only  person  interested  in  the  disposition  of 
the  estate,  to  file  an  inventory  and  render  an  account  within  the  pre- 
scribed time,  is  a  technical  breach  of  his  bond.  McKim  v.  Harwood, 
129  Mass.  75. 

A  bond  given  by  an  executor  upon  the  probate  of  a  will  in  the  pro- 
bate court  is  not  vacated,  but  only  suspended  in  its  operation  by  a 
subsequent  appeal  from  the  probate  of  the  will  ;  and  upon  an  affirm- 
ance of  the  same,  no  new  bond  need  be  given  by  the  executor.  Dun- 
ham V.  Dunham,  16  Gray,  577. 

A  bond  to  pay  debts  and  legacies  given  by  an  executor  and  resid- 
uary legatee  cannot  after  the  expiration  of  a  year  and  a  half  be  can- 
celled or  surrendered  by  the  judge  of  probate.  Alger  v.  Colwell, 
2  Gray,  404. 

Where  an  administration  bond  was  not  executed  by  the  administra- 
tor, the  sureties  were  held  not  to  be  liable.  Wood  v.  Washburn, 
2  Pick.  24;  Goodyear  Dental  Vulcanite  Co.  v.  Bacon,  151  Mass.  460. 

If  an  administrator  of  an  estate  represented  to  be  insolvent  neglects 
to  render  and  settle  his  account  in  the  probate  court  within  the  time 
prescribed,  he  and  his  sureties  are  liable  to  nominal  damages  at  least, 
in  a  suit  on  his  bond,  although  he  was  not  cited  by  the  judge  of  pro- 
bate to  render  an  account.  Fay  o.  Haven,  3  Met.  109  ;  Coney  v. 
Williams,  9  Mass.  114. 

The  question  whether  an  account  settled  in  the  probate  court  by 

28 


434       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

executor   or  administrator   for  his   own   benefit,  without 
first   obtaining   authority   from   the   probate    court;     1st. 

an  administrator  was  fraudulent,  cannot  be  tried  in  an  action  on  the 
'  administration  bond  for  not  settling  a  true  account.  Paine  v.  Stone, 
10  Pick.  75. 

A  devisee  of  real  estate  which  is  taken  from  him  by  a  title  para- 
mount to  tlie  testator's,  has  his  remedy  for  the  value  of  his  estate  upon 
the  bond  of  the  executor  being  also  the  residuary  legatee  for  the  pay- 
ment of  debts  and  legacies,  and  this  without  a  previous  demand  upon, 
or  action  against,  the  executor.     Paine  v.  Gill,  13  Mass.  365. 

If  during  the  lifetime  of  a  devisee  the  real  estate  devised  to  him  is 
unlawfully  sold  by  the  executor,  his  heirs  are  not  entitled  to  an  execu- 
tion in  a  suit  brought  in  the  name  of  the  judge  of  probate  on  the  bond 
of  the  executor,  but  it  must  be  applied  for  and  issue  to  the  adminis- 
trator.    Chapin  v.  Waters,  116  Mass.  140. 

If  the  decree  of  a  judge  of  probate  granting  leave  to  bring  an  action 
on  an  administrator's  bond  bears  date  prior  to  the  time  of  bringing 
the  action,  evidence  is  not  admissible  at  the  trial  to  show  that  the 
decree,  although  actually  made  at  the  date  stated,  was  not  reduced  to 
writing  till  after  action  brought.  Richardson  v.  Hazelton,  101  Mass. 
108.     See  Newell  v.  West,  149  Mass.  531. 

A  previous  demand  on  a  surety  in  a  bond  is  not  necessary  in  order 
to  maintain  an  action  upon  it  against  him.  Wood  v.  Barstow,  10  Pick. 
368. 

An  action  on  an  administration  bond  brought  for  the  benefit  of  a 
creditor  of  an  heir  who  levied  on  land  which  descended  to  the  heir, 
but  whose  levy  was  defeated  through  the  fault  of  the  administrator, 
cannot  be  sustained,  such  creditor  having  no  direct  interest  in  the 
bond.     Fay  v.  Hunt,  5  Pick.  398. 

If  a  judge  of  probate  grants  leave  to  bring  an  action  on  a  probate 
bond  for  the  benefit  of  an  individual  upon  his  filing  a  bond  to  indem- 
nify the  judge  against  the  costs  of  the  suit,  and  the  action  is  brought 
before  such  bond  is  filed,  the  judge  may  afterwards  receive  such  bond, 
and  it  will  relate  back  to  the  commencement  of  the  action.  White  v. 
Stanwood,  4  Pick.  380. 

Sureties  are  liable  for  the  amount  of  any  chattels  which  have  come 
to  the  administrator's  hands  as  well  before  as  after  the  execution 
of  the  bond  and  granting  of  administration.  Odiorne  r.  Maxcy,  13 
Mass.  177. 

If  a  surety  on  a  probate  bond  of  the  administrator  of  an  estate  who 
is  removed  for  failure  to  account,  is  himself  appointed  administrator 


PROBATE  BONDS.  435 

When  the  claim  is  by  a  creditor  who  has  recovered  judg- 
ment  against  the  executors  or  administrators,  and  they 

de  bonis  non  of  the  estate,  his  liability  on  the  bond  constitutes  a  debt 
from  him  to  the  estate,  which  is  assets  in  his  hands.  Choate  v.  Thorn- 
dike,  138  Mass.  371. 

The  surviving  surety  of  a  bond  of  a  trustee  under  a  will  was  on  his 
petition  discharged,  the  decree  reciting  that  the  trustee  had  filed  "  a 
new  and  sufficient  bond."  In  fact  the  second  bond  was  approved  on 
the  same  day  that  the  discharge  was  granted,  but  before  the  granting 
of  the  discharge  ;  and  the  second  bond  was  approved  as  "  an  additional 
bond."  Held,  that  the  second  bond  was  to  be  treated  as  a  "new 
bond,"  and  that  the  sureties  on  it  were  not  discharged  by  the  dis- 
charge of  the  surety  on  the  first  bond.  Brooks  v.  Whitmore,  139 
Mass.  356. 

A  surety  is  chargeable  with  a  sum  received  by  the  trustee  as 
part  of  the  income  of  the  trust  fund  which  he  has  not  paid  over 
to  the  ceslui  que  trust,  but  which  he  has  applied  to  make  up  a 
deficiency  in  the  investment  of  capital.  McKim  v.  Blake,  139  Mass. 
593. 

A  person  who  executes  as  surety  a  probate  bond  in  blank  and 
intrusts  it  to  his  principal  to  be  filled  in,  and  delivered  to  the  obligee, 
is  bound  by  the  instrument  as  delivered.  White  v.  Duggan,  140 
Mass.  18.  Under  the  condition  of  an  executor's  bond,  the  sureties  on 
the  bond  are  not  liable  for  the  proceeds  of  real  estate  sold  by  the 
executor  by  authority  of  the  will  and  not  needed  for  the  payment 
of  expenses,  debts,  or  specific  legacies.  White  v.  Ditson,  140  IMass. 
351.     See  Minot  v.  Norcross,  143  Mass.  334. 

A  trustee  under  a  will  gave  a  probate  bond  with  A  and  B  as 
sureties.  A  died,  and  D,  who  was  a  surety  on  another  bond  for  the 
same  principal  as  trustee  of  another  estate,  supposed  that  he  was  a 
co-surety  with  A  on  the  first  bond,  and  petitioned  the  probate  court 
to  be  discharged;  and  he  was  discharged  accordingly.  The  trustee 
then  gave  another  bond  in  the  same  penal  sum  as  the  other,  with  B 
and  C  as  sureties,  which  was  approved  by  the  judge  of  probate  as  "  a 
new  bond."  The  judge  and  parties  all  acted  under  the  same  appre- 
hension as  D.  Held,  that  both  bonds  were  valid,  and  that  the  sureties 
on  each  bond  after  a  breach  thereof  were  liable  in  proportion  to  the 
several  liabilities  assumed  by  them.  Brooks  v.  Whitmore,  142  Mass. 
399. 

The  settlement  in  the  probate  court  of  an  administrator's  account, 
showing  that  he  has  exhausted  all  the  estate  of  his  intestate  in  paying 


436       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

have  neglected  upon  demand  made  by  him  to  pay  the 
same  or  to  show  sufficient  goods  or  estate  of  the  deceased 

the  expenses  of  the  last  sickness,  funeral,  and  administration,  is  a  good 
defence  to  an  action  brought  against  the  administrator  upon  his  bond 
although  the  administrator  has  suffered  a  judgment  to  be  recovered 
against  him  before  such  settlement  of  his  account.  Fuller  v.  Connelly, 
142  JMass.  227.  But  to  entitle  an  administrator  to  depend  upon  the 
ground  of  insufficiency  of  assets,  there  must  be  an  inventory  filed  and 
a  settlement  of  his  account  in  the  probate  court.  McKim  v.  Haley, 
173  Mass.  112,  lU. 

The  proper  proceeding  to  compel  a  guardian  to  pay  legal  counsel 
for  professional  services  rendered  for  an  infant  ward  is  by  action 
against  the  ward  or  on  the  guardian's  bond.  Willard  v.  Lavender, 
147  Mass.  15. 

An  executor  who  receives  no  assets  and  files  no  inventory  within 
three  months  of  his  appointment,  commits  a  breach  of  his  bond  by 
failing  to  file  an  inventory  within  a  reasonable  time  after  assets  come 
to  his  hands.  If  an  executor  neglects  to  file  an  account  within  one 
year  after  his  appointment,  it  is  a  breach  of  his  bond,  although  a  debt 
due  to  the  executor  from  the  testator  and  the  burial  expenses  paid  by 
him  exceed  in  amount  the  assets,  and  no  claims  are  presented  by  cred- 
itors within  two  years.     Forbes  v.  McHugh,  152  Mass.  412. 

The  provision  in  the  Public  Statutes  that  a  trustee  of  an  estate 
may  be  exempted  from  giving  sureties  on  his  bond  at  the  request  of 
"  all  the  persons  beneficiall}'  interested  "  therein,  refers  to  such  inter- 
ested persons  only  as  are  in  being  and  have  a  vested  interest  in  the 
estate.     Dexter  v.  Cotting,  149  Mass.  92.     See  R.  L.  c.  149,  §  4. 

The  questions  whether  trustees  under  a  will  shall  give  bonds  to  the 
judge  of  probate  and  perform  the  other  duties  of  trustees  who  are 
obliged  to  give  such  bonds  are  primarily  for  the  probate  court.  Bul- 
lard  V.  Attorney-General,  153  Mass.  249. 

After  verdict  in  an  action  on  a  probate  bond  for  the  penal  sum 
thereof,  it  is  discretionary  with  the  court  upon  a  hearing  in  equity  to 
fix  the  amount  for  which  execution  shall  be  awarded,  or  to  submit  the 
question  to  a  jury.     Defriez  v.  Coffin,  155  Mass.  203. 

If  after  the  passing  of  a  decree  in  the  probate  court  exempting  an 
executor  from  giving  sureties  on  his  bond  he  files  a  bond  without  any 
surety  dated  on  the  day  when  the  will  was  first  presented  for  probate, 
bearing  the  approval  of  the  judge  of  probate  written  thereon  in  due 
form,  but  dated  and  actually  written  on  the  day  of  the  date  of  the 
bond,  this  will  be  a  sufficient  bond,  and  the  statute  of  limitations  will 


PROBATE   BONDS.  437 

to  be  taken  on  execution  for  that  purpose.  2d.  When 
the  estate  is  insolvent,  and  the  amount  due  the  creditor 
has  been  ascertained  by  a  decree  of  distribution.  3d.  By 
a  person  next  of  kin  whose  distributive  share  of  the  per- 
sonal estate  has  been  ascertained  by  a  decree  of  the  pro- 
bate court.  In  each  case,  the  person  bringing  the  action 
must  first  have  made  an  ineffectual  demand  upon  the 
executor  or  administrator.  These,  it  will  be  seen,  are 
cases  in  which  the  right  of  the  claimant  has  been  liqui- 
dated and  ascertained  by  matter  of  record,  amounting  to 
a  conclusive  judgment  between  the  parties,  and  nothing 
remains  but  payment.  ^ 

In  all  other  cases,  the  party  aggrieved  by  the  failure  of 
the  executor  or  administrator  to  perform  his  duty,  must 
obtain  leave  of  the  probate  court  before  bringing  an  action 
on  the  bond.2  This  is  the  course  to  be  pursued  by  a 
legatee  when  the  executor  neglects  to  pay  his  legacy  ;3 

begin  to  run  in  favor  of  the  executor  on  the  day  when  it  is  filed. 
Wells  V.  Child,  12  Allen,  330. 

>  Loring  r.  Kendall,  1  fi^ray,  316;  Newcomb  v.  Williams,  9  Met. 
536;  Barton  v.  White,  21  Pick.  60;  Pierce  v.  Prescott,  128  Mass. 
144. 

The  administrator  of  the  next  of  kin  may  bring  an  action  on  the 
bond  without  obtaining  leave  of  the  court.  White  v.  Weatherbee, 
126  ]\lass.  450. 

If  an  executor  or  administrator  neglects  to  render  and  settle  his 
accounts  in  the  probate  court  within  six  months  after  the  final  deter- 
mination of  the  claims  of  creditors,  or  within  such  further  time  as  the 
court  may  allow,  and  thereby  delays  a  decree  of  distribution,  such 
neglect  shall  be  deemed  unfaithful  administration;  and  he  may  be 
forthwith  removed,  and  shall  be  liable  in  a  suit  on  his  bond  for  all 
damages  occasioned  by  his  default.     R.  L.  c.  142,  §  26. 

2  R.  L.  c.  149,  §  23". 

»  Newcomb  v.  Williams,  9  Met.  525;  Fay  v.  Taylor,  2  Gray,  158 ; 
Conant  v.  Stratton,  107  Mass.  474.  A  legatee's  right  of  action  arises 
only  after  demand  upon  the  executor  for  payment  of  the  legacy. 
Prescott  V.  Parker,  14  Mass.  429. 


438       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

and  by  a  creditor,  or  one  next  of  kin  (whose  claim  or 
share  has  not  been  ascertained  by  a  judgment  or  decree), 
or    other    person    aggrieved    by    any    maladministration.^ 

^  For  the  failure  of  the  administrator  to  account  within  one  year, 
no  action  lies  on  the  probate  bond,  after  the  allowance  by  the  judge 
of  probate,  at  the  request  of  the  parties  in  interest,  of  an  account  sub- 
sequently rendered  by  him.     Loring  i'.  Kendall,  1  Gray,  305. 

Where  a  creditor  gives  up  his  securities  against  an  estate,  on  a 
personal  promise  by  the  executor  to  pay  his  debt,  it  seems  that  he 
thereby  loses  his  remedy  on  the  executor's  bond,  given  to  pay  debts 
and  legacies.     Stebbins  v.  Smith,  4  Pick.  97. 

If  an  executor  be  also  appointed  trustee  in  the  will,  but  gives  bond 
only  as  executor,  he  is  chargeable  in  that  capacity  for  the  property  in 
his  hands,  until  he  has  given  bond  as  trustee,  and  charged  himself 
with  the  property  as  trustee.  Prior  v.  Talbot,  10  Cush.  1 ;  Ricketson 
V.  Merrill,  148  Mass.  82. 

Where  a  general  legacy  is  given  to  one  for  life,  with  remainder  over, 
and  no  special  trustee  is  appointed  to  manage  the  same,  the  executor 
is  liable  on  his  bond,  if  he  does  not  renounce  the  trust,  for  any  default 
in  reference  to  such  legacy.  Dorr  v.  Wainwright,  13  Pick.  328; 
Brooks  V.  Rice,  131  Mass.  408. 

An  administrator's  bond  given  here  does  not  cover  proceedings 
under  letters  of  ancillary  administration  taken  out  in  another  state. 
Hooker  v.  Olmstead,  6  Pick.  481. 

In  his  inventory  filed  in  the  probate  court,  a  guardian  included 
assets  received  by  him  in  another  state  under  ancillary  letters  of  guar- 
dianship, and  by  a  decree  of  the  probate  court  here  there  was  found 
to  be  due  from  him  a  certain  sura.  He  resigned  as  guardian  in  this 
commonwealth,  and  his  resignation  was  accepted,  and  he  had  not 
received  his  discharge  as  guardian  in  the  other  state.  Held,  that  so 
long  as  the  decree  of  the  probate  court  remained  in  force,  there  was 
a  breach  of  the  condition  of  the  bond ;  that  at  the  expiration  of  his 
trust  he  should  pay  over  all  the  estate  to  the  persons  lawfully  entitled 
thereto.     Brooks  u.  Tobin,  135  Mass.  69. 

A  bond  given  by  an  administrator,  on  being  licensed  to  sell  so  much 
only  of  his  intestate's  real  estate  as  is  sufficient  for  the  payment  of 
debts  and  charges,  is  not  a  probate  bond,  and  an  action  upon  it  can- 
not be  commenced  originally  in  the  supreme  judicial  court.  Fay  v. 
Valentine,  8  Pick.  526. 

A  bond  giveu  by  a  person  who  is  simply  a  trustee  under  an  oral 


PROBATE    BONDS.  439 

These  are  cases  in  which  tlie  maladministration  may  have 
been  alike  injurious  to  all  the  creditors,  next  of  kin,  or 

appointment  is  not  a  valid  probate  bond ;  and  the  sureties  are  not 
estopped  from  setting  up  that  defence  by  a  recital  in  the  bond  that 
such  person  had  been  "duly  appointed  trustee,"  Conant  v.  Newton, 
126  Mass.  105. 

A  probate  bond  is  not  provable  in  bankruptcy  against  one  of  the 
sureties  before  a  breach  of  condition  of  the  bond ;  nor,  it  seems,  before 
judgment  in  an  action  brought  for  such  breach.  Loring  v.  Kendall, 
1  Gray,  305. 

When  a  testator  devised  an  annuity  to  his  widow,  and  authorized 
his  executor  to  sell  lands  sufficient  to  raise  a  fund,  the  interest  of 
which  should  be  equal  to  the  annuity,  the  executor's  neglect  to  raise 
said  fund  was  held  to  be  a  breach  of  his  bond.  Prescott  v.  Pitts, 
9  Mass.  376. 

When  the  same  person  is  executor  of  a  will  and  guardian  of  a  minor 
to  whom  a  legacy  is  given  by  the  will,  he  holds  the  amount  of  the 
legacy  in  his  capacity  of  executor,  and  not  as  guardian,  until  he  set- 
tles an  account  of  his  administration  in  the  probate  court,  crediting 
himself  as  executor  with  the  legacy,  and  charging  himself  therewith 
as  guardian.  Until  such  account  is  allowed  by  the  probate  court,  an 
action  cannot  be  maintained  against  him  and  his  sureties,  on  his  guar- 
dianship bond,  for  neglect  to  pay  the  legacy;  but  an  action  maybe 
maintained  against  him  and  his  sureties  on  the  bond  given  by  him  as 
executor.  Conkey  v.  Dickinson,  13  Met.  51 ;  White  v.  Ditson,  140 
Mass.  354. 

A  suit  on  the  administrator's  bond  can  be  maintained  for  the  bene- 
fit of  the  heirs,  for  waste  in  suffering  property  to  be  sold  at  a  disad- 
vantage and  loss,  on  execution.  Brazer  v.  Clark,  5  Pick.  96 ;  Dawes 
V.  Winship,  ibid.  97,  note. 

Where  an  executor  sold  real  estate  under  a  license  obtained  by  his 
misrepresentations  as  to  the  condition  of  the  estate  in  his  hands,  it  was 
held  that  such  sale  was  a  breach  of  his  bond.  Chapin  v.  Waters,  110 
Mass.  195. 

A  devisee  of  real  estate,  having  only  a  contingent  interest  therein, 
or  a  present  interest  defeasible  upon  a  condition  subsequent,  is  not 
entitled  to  bring  an  action  on  the  administration  bond.  Stevens  v. 
Cole,  7  Cush.  467.  Whether  a  devisee  of  real  estate  is  a  person  inter- 
ested in  the  estate  of  a  testator,  and  entitled  as  such  to  bring  an  action 
on  the  administration  bond,  qucere.     Ibid. 

A  refusal  by  an  administrator  to  comply  with  a  decree  of  the  pro- 


440       PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

legatees.  No  one  of  them  is  exclusively  entitled  to  prose- 
cute an  action,  and  the  statute  therefore  authorizes  the 
probate  court  to  designate  some  one  of  the  persons  inter- 
ested to  bring  an  action  for  the  benefit  of  all.^ 

An  action  may  be  brought  on  a  probate  bond  at  any 
time  within  twenty  years  after  the  breach  of  the  condition 
relied  on  as  a  cause  of  action.^ 

Any  person  interested  in  the  estate  may  petition  for 
leave  to  sue  the  bond.^  The  petition  should  state  clearly 
all  the  facts  necessary  for  the  consideration  of  the  court, 
or  proper  to  be  notified  to  the  adverse  party.     Upon  the 

bate  court  in  itself  void,  is  not  a  breach  of  his  bond.  Hancock  v. 
Hubbard,  19  Pick.  167;  Dawes  v.  Head,  3  Pick.  128. 

The  failure  of  an  administrator  to  pay  to  the  widow  of  his  intes- 
tate an  allowance  ordered  to  be  paid  by  a  decree  of  the  probate  court, 
is  a  breach  of  his  bond.  The  failure  to  pay  the  heirs  of  his  intestate 
on  demand  rents  of  real  estate  received  by  him  before  any  decree  of 
the  probate  court  is  not  a  breach.  If  a  decree  of  the  probate  court 
reforming  the  account  of  an  administrator  has  been  affirmed  by 
the  supreme  judicial  court  on  appeal,  and  the  case  remitted  to  the 
probate  court  for  further  proceedings,  that  court  may  authorize  the 
bringing  of  an  action  on  the  administrator's  bond,  although  the  cer- 
tificate of  the  decision  of  the  supreme  court  has  not  then  been  filed 
in  the  probate  court,  and  in  the  action  on  the  bond  neither  the 
administrator  nor  his  sureties  are  entitled  to  contest  the  validity  of 
the  order  authorizing  the  action.     Choate  v.  Jacobs,  136  Mass.  298. 

A  right  of  action  against  a  trustee  under  a  will  on  his  bond  arises 
upon  a  demand  by  his  successor  for  the  trust  fund,  and  his  refusal  to 
pay  over  the  same.  If  a  right  of  action  against  such  trustee  and  the 
sureties  on  his  bond  has  been  barred  by  the  failure  of  his  successor  to 
sue  within  the  time  limited  by  statute,  such  bar  cannot  be  removed 
and  a  new  right  of  action  created  by  a  new  demand  upon  the  first 
trustee  for  the  trust  fund  made  by  the  second  trustee  after  a  reappoint- 
ment as  such.     McKim  v.  Doane,  137  Mass.  195. 

1  Newcomb  v.  Wing,  3  Pick.  168;  Paine  v.  Moffit,  11  Pick.  496. 

2  Prescott  V.  Read,  8  Cush.  36.5;  Thayer  v.  Keyes,  136  Mass.  104. 

*  The  father  of  an  infant  interested  in  the  estate  having  himself 
no  adverse  interest  therein,  may  petition,  as  next  friend  of  the  infant, 
for  leave  to  sue  the  bond.     Stevens  v.  Cole,  7  Cush.  467. 


PROBATE   BONDS.  441 

petition,  a  citation  usually  issues  to  the  administrator  and 
his  sureties,  and  the  petitioner  must  see  that  the  citation 
is  served  in  the  manner  required  by  its  terms.^ 

The  petitioner  must  be  prepared,  at  the  time  fixed  for 
the  hearing,  to  show  that  the  administrator  has  so  failed 
to  perform  his  duty  as  to  render  proper  a  suit  on  his  bond. 
The  leave  to  bring  the  action  can  only  be  granted  by  a 
decree  in  writing.^  An  appeal  lies  from  a  decree  of  the 
probate  court  refusing  leave  to  sue  the  bond  ;  but  the 
signers  of  the  bond  cannot  appeal  from  a  decree  allowing  a 
suit,^  nor  contest  the  validity  of  the  decree  in  the  action.* 

When  the  judge  is  obligor,  as  principal  or  surety,  in  a 
bond  given  to  a  former  judge  of  the  court,  the  register  of 
the  probate  court  for  the  county  in  which  such  bond  was 
given  may  authorize  a  suit  thereon,  in  like  manner  and 
upon  the  same  conditions  as  the  court  may  in  other  cases.^ 

1  Leave  may  be  granted  to  a  legatee  to  bring  an  action  on  a  probate 
bond,  without  notice  to  the  obligors  of  the  application  for  such  leave, 
or  previously  summoning  the  piincipal  obligor  to  render  an  account, 
and  ordering  distribution  thereon.  Richardson  v.  Oakman,  15  Gray, 
57;  Bennett  v.  Woodman,  116  Mass.  519. 

Upon  a  special  bond  given  by  an  administrator  licensed  to  sell  more 
real  estate  than  is  necessary  for  the  payment  of  debts,  to  account  for 
the  surplus  proceeds,  an  action  will  lie  after  neglect  for  an  unreason- 
able time  to  render  such  an  account  in  the  probate  court,  although  he 
has  not  been  cited  to  do  so.     Bennett  v.  Overing,  16  Gray,  267. 

The  sureties  on  a  general  bond  given  by  an  executor  who  has  also 
given  a  special  bond  on  being  licensed  to  sell  real  estate  for  payment 
of  debts  and  legacies,  are  not  liable  for  the  neglect  of  the  executor  to 
pay  to  the  residuary  legatees  entitled  thereto  the  balance  of  the  pro- 
ceeds of  the  sale,  although  the  executor  charges  himself  in  his  general 
account  with  the  whole  of  such  balance.  Robinson  v.  Millard,  133 
Mass.  236. 

2  Fay  V.  Rogers,  2  Gray,  175.  «  Ibid. 

*  Bennett  v.  Woodman,  116  Mass.  518;  Choate  v.  Jacobs,  136 
Mass.  297. 

5  R.  L.  c.  149,  §  24. 


442       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Every  suit  on  an  administration  bond  must  be  brought 
in  the  superior  court,  held  for  the  county  in  which  the 
bond  was  taken.^  The  writ  must  be  indorsed  by  the  per- 
sons for  whose  benefit  or  at  whose  request  the  action  is 
brought,  or  by  their  attorney,  and  the  indorsers  are  liable 
for  the  costs  of  suit.  If  the  principal  in  the  bond  is  resi- 
dent within  the  commonwealth  at  the  commencement  of 
the  action,  and  is  not  made  a  defendant  therein,  or  is  not 
served  with  process,  the  court  may,  at  the  request  of  any 
of  the  sureties,  continue  or  postpone  the  action  so  long 
as  may  be  necessary  to  summon  or  bring  in  the  principal.^ 
If  the  action  is  brought  by  a  judgment  creditor,  or  by  a 
creditor  or  a  distributee,  the  amount  of  whose  claim  or 
share  has  been  established  by  a  decree  of  distribution, 
there  must  be  a  further  indorsement  specifying  that  it  is 
brought  for  the  use  or  benefit  of  such  creditor  or  next 
of  kin  ;  ^  and  execution,  if  he  obtains  judgment,  will  be 
awarded  for  his  own  use.  In  every  other  case  the  recov- 
ery is  of  all  damages  occasioned  by  the  default  of  the  de- 
linquent administrator,  not  the  especial  damage  sustained 
by  any  one  person.  The  suit  is  for  the  benefit  of  all  per- 
sons interested.  One  judgment  is  rendered  for  the  entire 
penalty,  and  execution  is  awarded  in  the  name  of  the  judge 
of  probate  as  the  rights  of  the  parties  interested  require.* 

When  it  appears  that  the  condition  of  the  bond  of  an 
executor  or  administrator  has  been  broken,  the  court  upon 
a  hearing  in  equity  shall  award  execution  in  the  name  of 
the  plaintiff  as  follows  :  — 

1  R.  L.  c.  149,  §  30.  2  Ibid.  §  27. 

8  Ibid.  §  26;  Bennett  v.  Russell,  2  Allen,  537. 

*  Bennett  v.  Overing,  16  Gray,  267;  Conant  v.  Stratton,  107  Mass. 
474;  Chapin  v.  Waters,  110  Mass.  195;  Choate  v.  Arrington,  116 
Mass.  552. 


PEOBATE  BONDS,  443 

First,  If  the  action  is  brought  for  the  benefit  of  a  cred- 
itor, execution  shall  be  awarded  for  the  use  of  the  creditor 
for  the  amount  due  to  him  upon  the  judgment  that  he 
has  recovered,  or  upon  the  decree  of  distribution  in  his 
favor. 

Second,  if  the  action  is  brought  for  the  benefit  of  a 
person  who  is  next  of  kin,  execution  shall  be  awarded  for 
the  use  of  such  person  for  the  amount  due  to  him  accord- 
ing to  the  decree  of  the  probate  court. 

Third,  If  the  action  is  brought  for  a  breach  of  the  con- 
dition in  not  accounting  for  the  estate  as  required  by  law, 
execution  shall  be  awarded,  without  expressing  that  it  is 
for  the  use  of  any  person,  for  the  full  value  of  all  the 
estate  of  the  deceased  that  has  come  to  the  hands  of  the 
executor  or  administrator,  and  for  which  he  does  not 
satisfactorily  account,  and  for  all  damages  occasioned  by 
his  neglect  or  maladministration. 

Fourth,  If  the  action  is  brought  for  any  other  breach 
of  the  condition  of  the  bond,  execution  shall  be  awarded 
for  such  amount  and  for  the  use  of  such  person  or  persons, 
or  without  expressing  it  to  be  for  the  use  of  any  particular 
person,  as  the  court  determines. 

Fifth,  If  there  are  two  or  more  persons  for  whose  use 
execution  is  to  be  awarded  as  provided  in  this  section,  a 
separate  execution  shall  be  issued  for  the  sum  due  to 
each  of  them. 

Sixth,  The  execution  shall  include  the  costs  of  suit,  as 
well  as  the  debt  or  damages  ;  and  if  there  is  more  than 
one  execution,  the  costs  shall  be  equally  divided  between 
them.  When  an  execution  awarded  under  the  preceding 
section  is  expressed  to  be  for  the  use  of  a  particular 
person,  such  person  shall  be  considered  as  the  judgment 
creditor,  and   may  cause   the   execution   to   be   levied  in 


444       PROCEEDINGS  IN  THE  PKOBATE  COURTS. 

his  name  and  for  his  benefit,  as  if  the  action  had  been 
brought  and  the  judgment  recovered  in  his  name.^ 

The  money  received  on  such  execution  is  assets  of  the 
estate  to  be  administered,  and  goes  into  the  hands  of  the 
rightful  executor  or  administrator  for  that  purpose. 
Generally,  maladministration  which  constitutes  a  breach 
of  his  bond  will  disqualify  an  administrator  and  cause 
his  removal.  But  if  there  were  two  or  more  executors, 
and  separate  bonds  were  given,  there  may  be  a  co-executor 
not  implicated,  in  which  case  the  money  is  paid  to  him. 
And  it  may  be  that  the  breach  of  the  bond  was  of  such 
a  nature  as  not  to  implicate  the  integrity  of  the  executor, 
-as  when  the  suit  was  brought  to  settle  some  question  of 
right,  in  which  case  he  may  charge  himself  with  the 
amount  of  the  judgment  recovered,  and  settle  the  estate. 
But  when  the  breath  of  the  bond  is  followed,  as  is  gener- 
ally the  case,  by  the  removal  of  the  executor  or  adminis- 
trator, and  there  is  no  co-executor  not  implicated,  the 
money  recovered  on  the  execution  is  paid  to  the  adminis- 
trator appointed  in  his  stead,  to  be  administered  accord- 
ing to  law.2  In  case  the  awards  of  execution  do  not 
exhaust  the  whole  penalty,  the  judgment  for  the  residue 
stands  for  any  other  breach,  which  may  at  any  time 
afterwards  occur,  to  be  sued  for  by  scire  facias,  either 
for  the  benefit  of  a  party  entitled  to  claim  in  his  own 
right,  or  by  the  judge  of  the  probate  court  as  trustee  for 
others.^ 

1  R.  L.  c.  149,  §§  31,  32. 

2  Ibid.  §  33;  Newcomb  v.  Williams,  9  Met.  538;  Wiggin  v.  Swett, 
6  Met.  198.  The  entry  of  judgment  may  be  suspended  until  oppor- 
tunity has  been  afforded  for  an  application  to  the  probate  court  for 
the  removal  of  the  administrator.  Bennett  v.  Russell,  2  Allen, 
537. 

8  R.  L.  c.  149,  §  34. 


PROBATE  BONDS.  445 


SUITS   UPON    BONDS   OP^   TRUSTEES    AND   GUARDIANS. 

Bonds  given  by  trustees  may  be  put  in  suit  by  order  of 
the  probate  court  for  the  use  and  benefit  of  any  person 
interested  in  the  trust  estate,  and  bonds  given  by  guar- 
dians for  the  use  and  benefit  of  the  ward  or  any  person 
interested  in  the  estate.^     The  proceedings  in  either  case 

1  R.  L.  c.  149,  §  29;  White  v.  Ditsou,  140  Mass.  357;  McKim  v. 
Hibbard,  142  Mass.  422. 

A  guardian,  licensed  to  sell  real  estate  for  the  purpose  of  invest- 
ment, did  not  duly  invest  the  proceeds,  but  charged  himself  with  such 
proceeds,  and  with  interest  thereon  from  year  to  year,  in  his  general 
guardianship  account,  which  was  allowed  by  the  court,  and  expended 
sums  equal  to  such  interest  for  the  support  of  his  ward.  Held,  that 
he  was  responsible  for  such  proceeds  upon  the  special  bond  given  by 
him  on  obtaining  the  license,  but  not  for  the  interest  thereon  upon  his 
general  bond.  Mattoon  v.  Cowing,  13  Gray,  387 ;  McKim  i-.  Morse, 
130  Mass.  439.     See  Robinson  v.  Millard,  133  Mass.  236. 

A  guardian  is  responsible  on  his  general  bond  for  money  due  from 
him  to  his  ward  at  the  time  of  his  appointment,  and  for  the  rent  of 
real  estate  occupied  by  the  guardian  before  that  time.  Mattoon  v. 
Cowing,  13  Gray,  387. 

The  sureties  on  a  guardian's  bond  are  not  discharged  from  liability 
by  the  fact  that  the  guardian's  account  is  not  settled  until  more  than 
two  years  after  his  death,  and  after  the  right  of  action  against  his 
administrator  is  barred  by  the  statute  of  limitations.  Chapin  v. 
Liverraore,  18  Gray,  561  ;  Cobb  v.  Kerapton,  154  Mass.  266.  Nor  in 
money  had  and  received. 

A  bill  in  equity  for  the  recovery  of  a  debt  due  from  the  ward  cannot 
be  sustained  against  the  guardian  ;  the  remedy  is  by  action  on  the  bond. 
Conant  v.  Kendall,  21  Pick.  3G.  The  guardian  is  not  liable,  in  an  action 
of  assumpsit,  to  one  who  has  furnished  necessaries  for  the  ward,  but  only 
in  an  action  on  his  bond.     Cole  v.  Eaton,  8  Cush.  587. 

The  remedy  of  a  ward  against  the  guardian  to  account  for  money 
received  from  the  sale  of  real  estate  by  order  of  court,  is  likewise  by  a 
suit  on  the  bond;  not  an  action  for  money  had  and  received.  Brooks 
V.  Brooks,  11  Cush.  18.  See  McLane  v.  Curran,  133  Mass.  531 ;  Wil- 
lard  V.  Lavender,  147  Mass.  15. 

A  surety  on  a  special  bond  given  by  a  guardian  upon  obtaining  a 
license  to  sell  his  ward's  real  estate  for  maintenance,  is  liable  for  a 


446       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

are  conducted  in  like  manner  as  suits  on  the  bonds  of  exec- 
utors and  administrators,  but  no  suit  can  be  maintained 
unless  it  is  brought  by  leave  of  the  probate  court. 

Action  against  sureties  in  a  guardian's  bond  are  limited 
to  four  years  from  the  time  the  guardian  is  discharged, 
except  that  if  at  the  time  of  the  discharge  the  person 
entitled  to  bring  the  action  is  out  of  the  state,  it  may  be 
commenced  at  any  time  within  four  years  after  his 
return.^  By  the  term  "discharged"  in  the  statute  is 
intended  any  mode  by  which  the  guardianship  is  effectu- 
ally determined,  either  by  the  removal,  resignation,  or 
death  of  the  guardian,  the  arrival  of  a  minor  ward  at  full 
age,  or  otherwise.^  The  limitation  applies  as  well  to 
bonds  given  by  guardians  on  obtaining  license  to  sell  real 
estate,  as  to  the  general  guardianship  bond. 

BONDS   OF    ADMINISTRATORS   OF   FRENCH   SPOLIATION   AWARDS. 

In  Sargent  v.  Sargent,  168  Mass.  420,  426,  the  opinion 
of  the  court  suggested  a  doubt  as  to  the  liability  of  sureties 
on  an  administrator's  bond  in  the  ordinary  form  for  a 
failure  by  the  administrator  to  distribute  French  spoliation 
awards  according  to  the  order  of  the  probate  court.  To 
remove  this  doubt,  St.  1902,  c.  371,  was  enacted. 

failure  by  the  guardian  to  invest  the  proceeds  of  the  sale  not  needed 
for  maintenance.     McKim  v.  Morse,  130  Mass.  439. 

A  ward  after  coining  of  age  is  not  entitled  to  prove  against  the 
estate  in  insolvency  of  his  guardian  a  claim  for  the  property  which 
came  into  the  hands  of  the  guardian  until  the  latter  has  settled  his 
account  in  the  probate  court,  or  until  a  judgment  has  been  obtained 
upon  his  bond.     Murray  v.  Wood,  144  Mass.  195. 

^  R.  L.  c.  149,  §  35.  The  death  of  the  vpard  is  a  discharge  of 
the  guardian.  McKim  v.  Mann,  141  Mass.  507;  Richmond  v.  Adams 
National  Bank,  152  Mass.  364. 

2  Loring  v.  Alline,  9  Cush.  68. 


PKOBATE   BONDS.  447 

This  statute  gives  to  the  probate  court  exclusive  original 
jurisdiction  of  all  matters  relating  to  the  administration  of 
moneys  appropriated  by  the  congress  of  the  United  States 
on  account  of  French  spoliations,  and  provides  that  every 
bond  given  after  the  passage  of  the  act  by  any  adminis- 
trator engaged  in  the  administration  of  French  spoliation 
awards  shall  contain  a  condition  substantially  as  follows : 
"  To  administer  according  to  law  and  the  orders  of  the 
probate  court  all  French  spoliation  awards  which  shall 
come  to  his  possession  as  such  administrator."  The  statute 
also  prescribes  the  form  of  approval  by  the  judge  or 
register  of  such  bonds. 


CHAPTER  XX. 

SPECIFIC  PERFORMANCE  OF  AGREEMENTS  TO  CONVEY 
LANDS.  —  ARBITRATION  AND  COMPROMISE.  —  SALE  OF 
STANDING  WOOD  AND  TIMBER. —  RELEASE  OF  INTERESTS 
IN  REAL  ESTATE  OF  WARDS.  —  SUPPORT  OF  MARRIED 
WOMEN  LIVING  APART  FROM  THEIR  HUSBANDS.  —  CON- 
TRIBUTION  BETWEEN   DEVISEES   AND   LEGATEES. 

CONVEYANCES  OF  LANDS  BY  EXECUTORS,  ADMINISTRATORS,  AND 
GUARDIANS   UNDER   CONTRACTS.  —  SPECIFIC   PERFORMANCE. 

"  If  a  person  who  has  entered  into  a  written  agreement 
for  the  conveyance  of  real  property  dies  or  is  put  under 
guardianship  before  making  such  conveyance,  the  probate 
court  shall  have  jurisdiction  concurrent  with  the  supreme 
judicial  court  and  the  superior  court  to  enforce  a  specific 
performance  of  such  agreement,  and,  upon  a  petition  there- 
for by  any  person  interested  in  the  conveyance,  shall,  after 
notice,  if  upon  the  hearing  it  appears  that  the  deceased, 
were  he  living,  or  the  ward,  were  he  not  under  guardian- 
ship, would  be  required  to  make  the  conveyance,  order  the 
executor  or  administrator  or  the  guardian  to  make  the 
same,  which  conveyance  shall  have  like  force  and  effect  as 
if  made  by  the  person  who  agreed  to  convey."  ^ 

1  R.  L.  c.  148,  §  1 ;  Pvoot  v.  Blake,  14  Pick.  271. 

The  jurisdiction  given  by  thi.s  statute  to  the  probate  court  is  con- 
current with  that  of  the  supreme  judicial  court,  and  the  superior 
court,  and  is  governed  by  the  same  rules.  Lynes  v.  Hayden,  119 
Mass.  482. 

If  the  petition  for  specific  performance  is  dismissed  by  the  probate 


ADJUSTMENT   OF   DEMANDS    BY   ARBITRATION.  449 


ADJUSTMENT   OF   DEMANDS   BY   ARBITRATION   OR   COMPROMISE. 

Probate  courts  may  authorize  executors,  administrators, 
guardians,  and  trustees  to  adjust,  by  arbitration  or  com- 
promise, any  demands  in  favor  of  or  against  the  estates 
by  them  represented.^  The  executor  or  other  officer  who 
is  desirous  of  so  adjusting  a  claim  should  present  a  peti- 
tion to  the  court  setting  forth  the  nature  of  the  demand, 
and  representing  that  it  can  be  adjusted  by  arbitration  or 
compromise,  and  that  the  interests  of  the  estate  repre- 
sented by  him  will  be  promoted  thereby.  Any  adjust- 
ment by  arbitration  or  compromise,  without  leave  of  the 
court  first  obtained,  would  be  at  the  risk  of  the  executor 
or  other  person  making  it,  and  might  give  rise  to  ques- 
tions upon  the  settlement  of  his  accounts  in  the  probate 
court.2 

court,  the  petitioner  cannot  bring  a  new  petition  in  the  supreme  judi- 
cial court.  I J  is  remedy  is  by  appeal.  Luchterhand  v.  Sears,  108 
Mass.  552. 

The  court  has  jurisdiction  to  decree  specific  performance  by  the 
representatives  of  a  deceased  husband  of  a  written  agreement  made 
by  him  with  his  intended  wife  before  marriage,  in  consideration  of  her 
past  service  to  him  and  of  the  contemplated  marriage,  to  convey  land 
to  her,  reserving  a  life-estate  therein  to  himself.  Miller  v.  Goodwin, 
8  Gray,  542. 

1  R.  L.  c.  148,  §  13. 

2  Chadbourn  v.  Chadbourn,  9  Allen,  173  ;  Blake  v.  Ward,  137 
Mass.  94.  See  Tallman  v.  Tallman,  5  Cush.  325 ;  Clarke  v.  Cordis, 
4  Allen,  466  ;  Ware  v.  Merchants'  National  Bank,  151  Mass.  445. 

If  an  administrator  submits  to  arbitration  a  demand  against  the 
estate  of  his  intestate,  the  award  will  be  binding  on  him.  Bean  v, 
Farnam,  6  Pick.  209. 

An  award  on  a  submission  by  a  guardian,  that  the  ward  and  infant 
heir  shall  pay  an  annuity  to  the  widow  in  lieu  of  dower,  is  voidable, 
not  void.     Barnaby  v.  Barnaby,  1  Pick.  221. 

If  land  held  by  two  persons  as  trustees  is  taken  by  a  city  for  a 

29 


450       PROCEEDINGS  IN  THE  PROBATE  COUKTS. 

Controversies  between  different  claimants  to  an  estate 
in  the  hands  of  executors,  administrators,  guardians,  and 
trustees,  and  between  the  persons  claiming  as  devisees 
or  legatees  under  a  will  and  the  persons  entitled  to  the 
estate  of  the  deceased  under  the  statutes  regulating  the 
descent  and  distribution  of  intestate  estates,  may  be  set- 
tled by  arbitration  or  compromise  in  the  supreme  judicial 
court.i 

SALE  OP  STANDING  WOOD  AND  TIMBER. 

"  If  the  supreme  judicial  court  or  the  probate  court  for 
the  county  in  which  the  land  lies  finds  that  wood  or 
timber,  standing  on  land  the  use  and  improvement  of 
which  belongs,  for  life  or  otherwise,  to  a  person  other  than 
the  owner  of  the  fee  therein,  has  ceased  to  improve  by 
growth,  or  ought  for  any  cause  to  be  cut,  it  may  appoint  a 
trustee  to  sell  and  convey  said  wood  or  timber,  to  be  cut 
and  carried  away  within  a  time  to  be  limited  in  the  order 
of  sale,  to  hold  and  invest  the  proceeds  thereof  after  pay- 
ing therefrom  the  expenses  of  such  sale,  to  pay  over  the 
income,  above  the  taxes  and  other  expenses  of  the  trust, 
to  the  person  entitled  to  such  use  and  improvement  while 
his   right  thereto   continues,  and   thereafter   to   pay  the 

highway,  an  arbitration  entered  into  between  a  lessee  and  one  of  the 
trustees  only,  in  accordance  with  which  the  city  pays  a  sum  of  money 
to  the  lessee,  is  void.     Boston  v.  Robbins,  126  Mass.  384. 

1  R.  L.  c.  148,  §§  14-18.  On  a  bill  in  equity  under  the  statute  to 
establish  a  compromise  of  a  charitable  devise  for  the  benefit  of  a  town, 
the  attorney-general  alone  can  represent  those  beneficially  interested  ; 
and  the  inhabitants  of  the  town  cannot  intervene  by  petition  to  oppose 
the  compromise,  or  appeal  from  a  decree  settling  its  terms.  Bur- 
bank  V.  Burbank,  152  Mass.  254. 

A  purchaser  of  standing  wood  and  timber,  after  severing  the  trees 
from  the  land,  has  an  irrevocable  license  to  enter  and  remove  them. 
Fletcher  i'.  Livingston,  153  Mass.  388. 


PROTECTION   AND   SUPPORT   OF   MARRIED   WOMEN.       451 

principal  of  the  fund  to  the  owner  of  such  land.  If  wood 
or  timber  has  been  cut  as  aforesaid,  no  more  thereof  shall 
be  cut  on  such  land  by  the  person  entitled  to  such  use  and 
improvement  without  permission  from  said  court.  Such 
sale,  if  authorized  by  a  probate  court,  shall  be  made  in  the 
manner  provided  by  law  for  the  sale  of  real  property  by 
guardians ;  and  if  such  sale  is  so  authorized  by  the  su- 
preme judicial  court,  the  trustees  shall  give  to  such  person 
as  the  court  shall  designate  a  bond,  for  the  use  and  benefit 
of  the  persons  interested  in  the  proceeds  of  the  sale,  with 
condition  for  the  faithful  discharge  of  the  trust ;  and  the 
court  may  from  time  to  time  remove  the  trustee,  and 
appoint  another  in  his  stead."  ^ 

PURCHASE   OF   INTERESTS   IN   REAL   ESTATE   OF   WARDS. 

Probate  courts,  after  notice  to  all  persons  interested, 
may  authorize  guardians  to  obtain  by  purchase  the  re- 
lease and  conveyance  of  a  right  of  dower  or  of  curtesy, 
homestead,  life-estate,  estate  for  years,  or  other  interest, 
vested  or  contingent,  held  or  owned  by  any  person  in  or  to 
any  real  property  of  their  wards,  and  to  make  any  contract 
concerning  such  rights  or  interests  which  may  be  necessary 
to  effect  such  purchase.^ 

PROTECTION  AND   SUPPORT   OP  MARRIED  WOMEN  LIVING  APART 
FROM   THEIR   HUSBANDS. 

When  a  husband  fails,  without  just  cause,  to  furnish 
suitable  support  for  his  wife,  or  has  deserted  her,  or 
when  the  wife,  for  justifiable  cause,  is  actually  living 
apart  from  her  husband,  the  probate  court  may,  by  its 
order  on  the  petition  of  the  wife,  or,  if  she  is  insane,  on 

1  R.  L.  c.  134,  §  11.  2  R.  L_  c.  145,  §  32. 


452       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

the  petition  of  her  guardian  or  next  friend,  prohibit  the 
husband  from  imposing  any  restraint  on  her  personal 
liberty  for  such  time  as  the  court  shall  in  such  order 
direct,  or  until  the  further  order  of  the  court  thereon ; 
and  the  court  may,  upon  the  application  of  the  husband 
or  wife  or  of  her  guardian,  make  such  further  order  as  it 
deems  expedient  concerning  the  support  of  the  wife,  and 
the  care,  custody,  and  maintenance  of  the  minor  children 
of  the  parties,  and  may  determine  with  which  of  their 
parents  the  children  or  any  of  them  shall  remain ;  and 
may,  from  time  to  time,  afterwards,  on  a  similar  applica- 
tion, revise  and  alter  such  order,  or  make  a  new  order  or 
decree,  as  the  circumstances  of  the  parents  or  the  benefit 
of  the  children  may  require.  The  petition  may  be  brought 
in  the  county  in  which  either  of  the  parties  lives,^  except 

1  A  decree  for  the  separate  maintenance  of  a  wife  will  be  valid, 
even  though  the  husband  resides  out  of  the  State,  if  notice  is  served 
upon  hira.  Blackinton  v.  Blackinton,  141  Mass.  435;  Osgood  v. 
Osgood,  153  Mass.  39. 

It  is  no  bar  to  an  action  under  the  statute  that  the  wife  has  con- 
tracted, for  a  valuable  consideration,  to  release  her  husband  from  all 
claim  by  her  on  him  for  support,  and  to  indemnify  him  from  any  such 
claim.     Silverman  v.  Silverman,  140  Mass.  560. 

A  decree  that  the  husband  pay  a  sum  in  gross  for  all  support  of  his 
wife  in  the  future  cannot  be  entered  without  the  consent  of  all  par- 
ties.    Doole  V.  Doole,  144  Mass.  278. 

On  a  petition  brought  under  this  statute  the  probate  court  can- 
not make  a  decree  against  the  guardian  of  a  spendthrift  husband. 
Kavanaugh  v.  Kavanaugh,  146  Mass.  40. 

If  an  attachment  of  a  husband's  real  estate  is  made  on  a  wife's 
petition  for  separate  maintenance,  the  probate  court  to  enforce  the 
payment  of  an  allowance  to  her  for  her  support  may  issue  succes- 
sive executions  until  the  property  attached  is  exhausted,  and  the 
attachment  will  continue  until  that  time.  Downs  v.  Flanders,  150 
Mass.  93. 

An  attachment  of  property  of  a  husband  by  his  wife,  who  is  living 
apart  from  him,  made  less  than  four  months  prior  to  the  first  publica- 


PROTECTION   AND    SUPPORT   OF    MARRIED   WOMEN.       453 

that,  if  the  petitioner  has  left  the  county  in  which  the 
parties  have  lived  together  and  the  respondent  still  lives 
therein,  the  petition  must  be  brought  in  that  county. 

Upon  the  petition  an  attachment  of  the  husband's  prop- 
erty may  be  made  as  upon  a  libel  for  divorce,  and  the 
court  may  require  the  husband  to  pay  into  court  for  the 
use  of  the  wife  such  sum  of  money  as  may  enable  her  to 
maintain  her  petition.  The  court  has  power  to  enforce  its 
decrees  in  the  same  manner  as  decrees  are  enforced  in 
equity  ;  and  its  decrees  will  have  effect,  notwithstanding 
an  appeal,  until  otherwise  ordered  by  the  superior  court.^ 

tion  of  notice  of  the  filing  of  a  petition  in  involuntary  proceedings  in 
insolvency  against,  will  be  dissolved  by  such  proceedings.  Place  v. 
Washburn,  163  Mass.  530. 

A  decree  of  the  probate  court  on  a  wife's  petition  for  separate 
maintenance,  adjudging  that  she  is  living  apart  from  her  husband  for 
justifiable  cause,  is,  while  it  remains  in  force,  a  bar  to  a  libel  for  a 
divorce  on  the  ground  of  desertion.     Miller  v.  Miller,  150  Mass.  111. 

A  decree  of  the  probate  court  that  a  wife  is  living  apart  from  her 
husband  for  justifiable  cause  is  not  competent  evidence  in  an  action 
against  the  husband  by  a  third  person  for  the  board  of  his  wife  and 
child,  that  the  wife  was  living  apart  from  him  for  justifiable  cause, 
although  the  same  cause  which  was  the  basis  of  the  decree  continued 
during  all  the  time  such  board  was  furnished.  Barney  v.  Tourtellotte, 
138  Mass.  106. 

The  probate  court  has  authority  to  order  the  respondent  to  appear 
by  publication  of  notice,  and  to  determine  the  length  of  time  which 
shall  elapse  between  the  last  publication  and  the  return  day.  Osgood 
V.  Osgood,  153  Mass.  38. 

A  wife  who  is  actually  living  apart  from  her  husband  for  justifiable 
cause  can  maintain  a  petition  for  separate  support,  even  though  at  the 
time  of  her  filing  her  petition  he  had  no  notice,  express  or  implied, 
that  she  was  so  living.     Smith  v.  Smith,  154  Mass.  262. 

1  R.  L.  c.  153,  §§  33-35  ;  c.  162,  §  19. 

The  statute,  so  far  as  it  provides  that,  when  a  wife  is  living  apart 
from  her  husband  for  justifiable  cause  and  he  fails  to  support  her,  the 
court  may  make  such  order  as  it  deems  expedient  for  her  support  and 
for  the  maintenance  of  the  minor  children,  is  constitutional  although 


454       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

The  court  in  which  a  libel  for  divorce  is  pending  may, 
without  entering  a  decree  of  divorce,  cause  the  libel  to  be 
continued  on  the  docket  from  time  to  time,  and  during 
such  continuance  may  make  orders  and  decrees  relative 
to  a  temporary  separation  of  the  parties,  the  separate 
maintenance  of  the  wife,  and  the  custody  and  support  of 
the  minor  children.  Such  orders  and  decrees  may  be 
changed  or  annulled  as  the  court  may  determine,  and  shall, 
while  they  are  in  force,  supersede  any  order  or  decree  of 
the  probate  court  under  the  provisions  of  section  thirty- 
three  of  chapter  one  hundred  and  fifty-three,  and  may  sus- 
pend the  right  of  said  court  to  act  under  the  provisions  of 
said  section.! 

SUPPORT  OP  MINOR  CHILDREN  UNDER  GUARDIANSHIP. 

The  probate  court  may,  upon  the  petition  of  a  guardian 
entitled  to  the  custody  of  his  minor  ward,  during  the  life- 
it  makes  no  provision  for  a  trial  by  jury.  Bigelow  v.  Bigelow,  120  Mass. 
320. 

The  court  has  power  to  make  an  order  for  the  separate  support  of 
a  wife  while  living  in  the  same  house  with  her  husband  and  perform- 
ing some  of  the  duties  of  a  wife ;  and  the  statute  is  constitutional. 
Buckuam  v.  Bucknam,  176  Mass.  229. 

The  probate  court  may  properly  require  a  man  to  contribute  to  his 
wife's  support,  although  his  only  means  of  complying  with  the  order 
is  derived  from  a  pension  granted  him  by  the  United  States.  Tully 
V.  Tully,  159  Mass.  91. 

"  Support  "  includes  not  merely  board,  but  everything  necessary  to 
proper  maintenance.     Gould  v.  Lawrence,  160  Mass.  232. 

A  court  of  equity  cannot  decide  whether  a  wife  is  living  apart  from 
her  husband  for  justifiable  cause ;  and  a  wife  who  has  filed  in  the 
probate  court  a  petition  for  separate  maintenance,  upon  which  no 
order  for  such  maintenance  has  been  granted,  cannot  maintain  a  bill 
in  equity  to  reach  property  alleged  to  belong  to  the  husband,  and  to 
hold  it  until  such  an  order  shall  be  entered.  Willard  v.  Briggs,  161 
Mass.  58  ;  Brownell  v.  Briggs,  173  Mass.  529,  532. 

1  R  L.  c.  152,  §  17. 


RELEASE   OF   DOWER,   ETC.,   BY   WIFE   OF   WARD.         455 

time  of  either  or  both  of  his  parents,  and  after  notice  to  all 
parties  interested,  order  and  require  the  said  parents,  or 
either  of  them,  to  contribute  to  the  support  and  mainte- 
nance of  such  minor  in  such  sums  and  at  such  times  as 
it  determines  are  just  and  reasonable.  Such  parent  or 
parents  may  be  required  to  give  a  bond  conditioned  to 
comply  with  such  order  and  payable  to  the  judge  of  said 
court  and  his  successors  in  such  sum  and  with  such  sure- 
ties as  the  court  orders.  The  court  may  from  time  to  time, 
upon  application  of  either  party,  revise  or  alter  such  order 
or  make  such  new  order  or  decree  as  the  circumstances  of 
the  parents  or  the  benefit  of  the  minor  may  require.^ 

The  probate  court  has  exclusive  original  jurisdiction 
of  the  petitions  of  married  women  concerning  their  sepa- 
rate estate,  and  of  the  petitions  or  applications  concern- 
ing the  care,  custody,  education,  and  maintenance  of 
minor  children.^ 

Appeals  from  the  probate  court,  on  petitions  for  separate 
support  brought  under  section  33  of  Rev.  Laws,  c.  153,  and 
petitions  of  married  women  concerning  their  separate 
estate,  and  petitions  concerning  the  care,  custody,  edu- 
cation, and  maintenance  of  minor  children  shall  be  taken 
to  the  superior  court.  And  such  appeals,  and  the  proceed- 
ings thereon,  shall,  so  far  as  practicable,  be  the  same  as  on 
appeals  to  the  supreme  judicial  court.  ^ 

SALE    AND    RELEASE    OF   A    WIFE'S   INTEREST    IN   LANDS   WHEN 
THE    HUSBAND    IS   UNDER   GUARDIANSHIP. 

If  the  guardian  of  a  married  man  is  licensed  to  sell  his 
ward's  real  estate,  the  wife  of  the  ward  may  join  with  the 
guardian  in  the  conveyance  for  the  purpose  of  releasing  her 
right  of  dower  and  the  estate  or  right  of  homestead,  in  like 

1  R.  L.  c.  145,  §  28.        2  R.  L.  c.  162,  §  4.        »  Ibid.  §  18. 


456       PROCEEDINGS  IN  THE  PKOBATE  COURTS. 

manner  as  she  might  have  done  by  joining  in  a  conveyance 
thereof  made  by  her  husband  if  lie  had  been  under  no 
legal  disability.^  If  such  guardian  is  licensed  to  sell  the 
ward's  interest  in  real  estate  of  his  wife,  she  may  join  with 
the  guardian  in  the  conveyance,  and  thereby  convey  her 
estate  in  the  granted  premises.  If  the  wife  so  releases  her 
right  of  dower  or  an  estate  of  homestead,  or  so  conveys 
her  own  estate,  the  proceeds  of  the  sale  may  be  so  invested 
and  disposed  of  as  to  secure  to  the  wife  and  to  the  minor 
children  of  the  owner,  if  it  is  an  estate  of  homestead,  the 
same  rights  in  the  principal  and  the  income  thereof  that 
she  or  they  would  have  had  therein  if  it  had  not  been  sold. 
An  agreement  between  her  and  the  guardian  for  securing 
and  disposing  of  the  proceeds  or  of  any  part  thereof  for 
the  purpose  aforesaid,  if  approved  by  the  probate  court 
for  the  county  in  which  the  guardian  was  appointed,  or  by 
the  supreme  court  of  probate  upon  appeal,  or,  in  default  of 
an  agreement  between  her  and  the  guardian  approved 
as  aforesaid,  an  order  therefor  made  by  the  probate  court 
is  valid  and  binding  on  all  persons  interested  in  the  granted 
property  or  in  said  proceeds,  and  may  be  enforced  by  the 
court  or  by  an  action  at  law.^ 

RELEASE    OP    CURTESY,    DOWER,    AND     HOMESTEAD    ESTATES   BY 
GUARDIANS   OF   INSANE   PERSONS. 

"  The  husband  or  wife  of  an  insane  person  who  desires  to 
convey  his  or  her  real  property  absolutely  or  by  mortgage 
may  file  a  petition  in  the  probate  court  describing  such  real 

^  The  signature  of  any  married  woman  under  the  age  of  twenty- 
one  years,  affixed  by  her  to  any  instrument  relating  to  the  conveyance 
of  land  of  her  husband,  shall  have  the  same  effect  as  if  she  were  over 
that  age.     St.  1902,  c.  478. 

2  R.  L.  c.  153,  §§  15-17. 


RELEASE   OF  CURTESY,   DOWER,   ETC.,   BY   GUARDIANS.      457 

property,  and  praying  that  the  dower  of  the  wife  or  an 
estate  of  homestead  or  a  tenancy  by  the  curtesy  at  com- 
mon law  or  by  statute  of  the  husband  therein  may  be 
released,  and  stating  the  facts  and  reasons  why  the  prayer 
of  the  petition  should  be  granted.  The  court  may,  after 
notice  and  a  hearing,  by  a  decree  authorize  the  guardian 
of  the  insane  person  to  make  the  release  by  joining  in  any 
deed  or  deeds,  mortgage  or  mortgages  of  the  whole  or  a 
part  of  such  real  property,  to  be  made  within  five  years 
after  the  decree  by  the  husband  or  wife  of  the  insane 
person  or  by  a  trustee  for  such  husband  or  wife."  ^ 

"  If  the  guardian  of  an  insane  husband  is  authorized 
under  the  provisions  of  the  preceding  section  to  release 
such  tenancy  by  the  curtesy  and  the  probate  court  finds 
that  a  portion  of  the  proceeds  of  such  real  property,  or  of 
an  amount  loaned  on  mortgage  thereof,  should  be  reserved 
for  the  use  of  such  ward,  it  may  order  that  a  certain 
portion,  not  exceeding  one-third  of  the  net  amount  if  it  is 
in  respect  of  the  tenancy  by  the  curtesy  by  statute,  of  the 
proceeds  or  amount  actually  realized  from  such  sale  or 
mortgage,  exclusive  of  any  encumbrance  then  existing  on 
the  property,  shall  be  set  aside  and  paid  over  to  such 
guardian,  who  shall  invest  and  hold  it  for  the  benefit  of 
the  husband  during  his  life,  if  he  survives  his  wife.  The 
income  of  such  portion  shall  be  received  and  enjoyed  by 
the  wife  during  the  life  of  her  husband,  or  until  otherwise 
ordered  by  the  court  for  cause.  If  she  survives  him  the 
principal  shall  upon  his  decease  be  paid  over  to  her,  but 
if  she  does  not  survive  him,  to  her  heirs,  executors,  or 
administrators."  '^ 

"  If  the  guardian  of  an  insane  wife  is  authorized  under 
the  provisions  of  section  nineteen  to  release  the  dower  of 

1  R.  L.  c.  153,  §  19.  2  Ibid.  §  20. 


458       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

liis  ward,  and  the  probate  court  finds  that  a  portion  of 
the  prpceeds  of  such  real  property,  or  of  an  amount  loaned 
on  mortgage  thereof,  should  be  reserved  for  the  use  of 
such  ward,  it  may  order  that  a  certain  portion,  not  exceed- 
ing one-tliird  of  the  net  amount  of  the  proceeds  or  amount 
actually  realized  from  such  sale  or  mortgage,  exclusive 
of  any  encumbrance  then  existing  on  the  property,  shall 
be  set  aside  and  paid  over  to  such  guardian,  who  shall 
invest  and  hold  it  for  the  benefit  of  the  wife  during  her  life 
if  she  survives  her  husband.  The  income  of  such  portion 
shall  be  received  and  enjoyed  by  the  husband  during  the 
life  of  his  wife,  or  until  otherwise  ordered  by  the  court 
for  cause.  If  he  survives  her  the  principal  shall,  upon  her 
decease,  be  paid  over  to  him,  but  if  he  does  not  survive  her, 
to  his  heirs,  executors,  or  administrators."  ^ 

"  If  the  guardian  of  an  insane  wife  is  authorized  under 
the  provisions  of  section  nineteen  to  release  an  estate  of 
homestead,  and  the  probate  court  finds  that  a  portion  of 
the  proceeds  of  the  real  property  sold,  or  of  an  amount 
loaned  on  mortgage  thereof,  should  be  reserved  for  the  use 
of  the  ward,  it  may  order  that  a  certain  portion,  not  ex- 
ceeding eight  hundred  dollars,  shall  be  set  aside  and  paid 
over  to  such  guardian,  to  be  invested  in  a  homestead,  and 
held  by  him  for  the  benefit  of  his  ward,  if  she  survives  her 
husband ;  the  rent  or  use  thereof  to  be  received  and 
enjoyed  by  the  husband  during  the  life  of  his  wife,  or  until 
otherwise  ordered  by  the  court  for  cause ;  and  the  home- 
stead to  be  his,  and  to  be  conveyed  to  him  by  said  guardian, 
if  he  survives  her."  ^ 

"  If  the  husband  or  wife  of  an  insane  person  conveys 
real  property  in  trust  without  a  power  of  revocation,  and 
makes  a  provision  therein  for  the  insane  husband  or  wife, 
1  R.  L.  c.  153,  §  21.  2  Ibid.  §  22. 


CONFIRMATION  OF  ACTS  OF  EXECUTORS,  ETC.     459 

respectively,  which  the  probate  court,  upon  petition,  after 
notice  and  a  hearing,  finds  is  sufficient  in  lieu  of  curtesy 
or  dower,  the  trustee  may  convey  such  real  property  free 
from  all  right  of  curtesy  or  dower."  ^ 

"  The  court,  under  the  provisions  of  the  preceding  sec- 
tion, may  find  that  the  provision  for  the  husband  or  wife 
is  sufficient  in  lieu  of  curtesy  or  dowry  either  in  the  whole 
or  in  particular  portions  of  the  real  property  of  the 
husband  or  wife,  and  thereupon  the  guardian  of  such 
insane  husband  or  wife  may  be  authorized  to  release  the 
curtesy  or  dower  in  the  whole  or  in  particular  portions 
thereof."  2 

"  Proceedings  in  the  probate  court  under  the  provisions 
of  the  six  preceding  sections  shall,  if  the  husband  or  wife 
of  such  insane  person  is  an  inhabitant  of  this  common- 
wealth, be  in  the  county  in  which  he  or  she  resides ;  other- 
wise in  a  county  in  which  any  of  his  or  her  real  property 
is  situated ;  and  a  certified  copy  of  all  final  orders  and 
decrees  in  such  proceedings  shall  be  recorded  in  the 
registry  of  deeds  in  every  county  or  district  in  which  such 
real  property  is  situated."  ^ 

CONFIRMATION  OP  DEFECTIVE  ACTS  OR  PROCEEDINGS  OP  PRO- 
BATE COURTS,  OR  OF  PERSONS  ACTING  UNDER  APPOINT- 
MENT  FROM   PROBATE   COURTS. 

"  If  the  authority  or  validity  of  an  act  or  proceeding 
of  the  probate  court,  or  of  a  person  acting  as  executor, 
administrator,  guardian,  or  trustee,  is  drawn  in  question 
by  reason  of  an  alleged  irregularity,  defective  notice,  or 
want  of  authority,  any  party  interested  in  or  affected  by 
such  act  or  proceeding  may  apply  to  the  probate  court 
having  jurisdiction  of  the  subject-matter  relative  to  which 

1  R.  L.  c.  153,  §  23.         2  Ibid.  §  24.         »  Ibid.  §  25. 


460  PEOCEEDINGS    IN    THE    PllOBATE    COURTS. 

the  act  or  proceeding  has  been  had,  and  the  court,  after 
notice  to  all  parties  interested,  and  to  the  persons  who  may 
be  the  parents  of  such  parties  not  in  being,  with  power  to 
appoint  a  guardian  or  next  friend  to  represent  the  interests 
of  any  person  unborn  or  unascertained,  may  hear  and 
determine  the  matter  and  confirm  the  act  or  proceeding, 
in  whole  or  in  part,  and  may  authorize  and  empower  the 
executor,  administrator,  guardian,  or  trustee,  or  any  suc- 
cessor or  other  person  who  may  be  legally  appointed  to 
act  in  the  same  capacity,  to  ratify  and  confirm  such  act 
or  proceeding,  and  to  execute  and  deliver  such  deeds, 
releases,  conveyances,  and  other  instruments  as  may  be 
found  necessary  for  that  purpose ;  but  no  act  or  proceed- 
ing shall  be  ratified  or  confirmed  which  the  court  might 
not  have  passed  or  authorized  in  the  first  instance  upon 
due  proceedings."  ^ 

CONTRIBUTION    AMONG   DEVISEES   AND   LEGATEES. 

"  If  a  posthumous  child,  or  a  child  or  the  issue  of  a  child 
omitted  in  the  will,  takes  under  the  provisions  of  section 
nineteen  or  twenty  a  portion  of  the  estate  of  a  testator, 
such  portion  shall  be  taken  from  all  the  devisees  and  lega- 
tees in  proportion  to  and  not  exceeding  the  value  of  what 
they  respectively  receive  under  such  will,  unless  in  conse- 
quence of  a  specific  devise  or  legacy  or  of  some  other 
provision  of  the  will  a  different  apportionment  is  found 
necessary  in  order  to  give  effect  to  the  testator's  inten- 
tion relative  to  that  part  of  his  estate  which  passes  by 
his  will."  2 

1  R.  L.  c.  148,  §  24;  Nott  v.  Sampson  Mfg.  Co.,  142  Mass.  481. 

2  R.  L.  c.  135,  §  25.  For  a  case  in  which  it  was  held  that  the  share 
of  a  posthumous  child  should  be  taken  from  the  residuary  bequest 
in  a  will,  see  Bowen  v.  Hoxie,  137  Mass.  527. 


CONTRIBUTION   AMONG   DEVISEES   AND   LEGATEES.       461 

"  If  property  which  is  given  by  will  is  taken  from  a 
devisee  or  legatee  for  the  payment  of  the  debts  of  the 
testator,  all  the  other  devisees  and  legatees  shall,  subject 
to  the  provisions  of  the  following  section,  contribute  their 
respective  proportions  of  the  loss  to  the  person  from  whom 
such  property  is  taken,  so  that  the  loss  may  fall  on  all  the 
devisees  and  legatees  in  proportion  to  and  not  exceeding 
the  value  of  the  property  received  by  each."  ^ 

"  If  the  testator,  by  making  a  specific  devise  or  bequest, 
has  virtually  exempted  a  devisee  or  legatee  from  liability 
to  contribute  with  the  others  for  the  payment  of  the  debts, 
or  if  by  any  other  provisions  in  his  will  he  has  prescribed 
or  required  an  appropriation  of  his  estate  different  from 
that  prescribed  in  the  preceding  section,  his  property  shall 
be  appropriated  and  applied  in  conformity  with  the  pro- 
visions of  the  will,  so  far  as  such  appropriation  and  appli- 
cation can  be  made  without  affecting  the  liability  of  his 
whole  estate  for  the  payment  of  his  debts. "  ^ 

"  If  a  posthumous  child,  or  a  child  or  the  issue  of  a  child 
omitted  in  the  will,  takes  under  the  provisions  of  section 
nineteen  or  twenty  a  portion  of  the  estate  of  a  testator, 
such  portion  of  the  estate  shall,  for  the  purposes  of  the 
two  preceding  sections,  be  considered  as  if  it  had  been 
devised  or  bequeathed  to  such  child  or  other  descendant ; 
and  he  shall  contribute  with  the  devisees  and  legatees ; 
and  be  entitled  to  claim  contribution  from  them,  as  before 
provided."  ^ 

"  If  a  person  who  is  liable  to  contribute  according  to  the 
provisions  of  the  three  preceding  sections  is  insolvent  or 
unable  to  pay  his  just  proportion  of  the  contribution 
required,  the  other  persons  so  liable  to  contribute  shall 
be  severally  liable  for  the  loss  occasioned  by  such  insol- 
1  R.  L.  c.  135,  §  26.  2  Ibid.  §  27.         »  Ibid.  §  28. 


462       TROCEEDINGS  IN  THE  PROBATE  COURTS. 

vency,  each  one  in  proportion  to  and  not  exceeding  the 
value  of  the  property  received  by  him  from  the  estate  of 
the  deceased  ;  and  if  a  person  who  is  so  liable  dies  without 
having  paid  his  proportion,  his  executors  and  administra- 
tors shall  be  liable  therefor  in  like  manner  as  if  it  had 
been  his  own  debt  and  to  the  extent  to  which  he  would 
have  been  liable  if  living."  ^ 

"  If  the  estate  of  a  devisee  under  a  will  is  taken  for  the 
tenancy  by  the  curtesy  of  the  husband,  or  for  the  dower 
of  the  widow,  of  the  testator,  all  the  other  devisees  and 
legatees  shall  contribute  their  respective  proportions  of 
the  loss  to  the  person  from  whom  the  estate  is  so  taken, 
so  that  the  loss  may  fall  upon  all  the  devisees  and  legatees 
in  proportion  to  and  not  exceeding  the  value  of  property 
received  by  them  under  the  will ;  but  no  devisee  or  legatee 
shall  contribute  if  exempted  therefrom  by  the  provisions 
of  the  will.  "2 

"WHITS   OF   HABEAS   CORPUS. 

Any  court  which  has  jurisdiction  of  libels  for  divorce  or 
for  nullity  of  marriage,  of  petitions  for  separate  support  or 
maintenance,  or  of  any  other  proceeding  in  which  the  care 
and  custody  of  any  child  or  children  is  drawn  in  question, 
may  issue  a  writ  of  habeas  corpus  when  necessary  in  order 
to  bring  before  it  such  child  or  children.  The  writ  may 
be  made  returnable  forthwith  before  the  court  by  which  it 
is  issued,  and,  upon  its  return,  said  court  may  make  any 
appropriate  order  or  decree  relative  to  the  child  or  chil- 
dren who  may  thus  be  brought  before  it.^ 

1  R.  L.  c.  135,  §  29.         2  Ibid.  §  30.         »  St.  1902,  c.  324. 


CHAPTER  XXI. 

APPEALS  FROM  THE  PROBATE   COURT. 

The  supreme  judicial  court  is  also  the  supreme  court 
of  probate,  and  has  appellate  jurisdiction  of  all  matters 
determinable  by  the  probate  courts,  and  by  the  probate 
judges,  except  as  otherwise  expressly  provided.  The 
statute  provides  that  "  a  person  who  is  aggrieved  by  an 
order,  sentence,  decree,  or  denial  of  a  probate  court  or  of 
a  judge  of  such  court  may,  except  as  otherwise  provided, 
appeal  therefrom  to  the  supreme  judicial  court."  ^ 

This  provision  of  the  statute  applies  to  all  decrees  or 
orders  of  the  probate  court  except  appeals  from  decrees 
or  orders  on  petition  of  married  women  for  separate  sup- 
port brought  under  section  33,  chapter  153,  of  the  Revised 
Laws,  and  petitions  of  married  women  concerning  their 
separate  estates,  provided  for  by  sections  31  and  32  of  said 
chapter,  and  petitions  concerning  the  care,  custody,  educa- 
tion, and  maintenance  of  minor  children,  provided  for  by 
section  37  of  said  chapter,  are  to  be  taken  to  the  superior 
court,  and  all  proceedings  thereon  shall,  so  far  as  practica- 

1  R.  L.  c.  162,  §§  8,  9 ;  Swasey  v.  Jaques,  144  Mass.  135.  Objec- 
tion to  the  jurisdiction  of  the  probate  court  can  be  taken  only  by  way 
of  appeal.     Cummings  v.  Hodgdon,  147  Mass.  21. 

An  appeal  lies  from  the  decision  of  a  judge  of  probate  dismissing 
a  petition  for  partition.     Dearborn  v.  Preston,  7  Allen,  192. 

The  supreme  court  has  no  authority  to  issue  a  writ  of  certiorari 
to  the  probate  court,  or  to  annul  or  reverse  a  decree  of  that  court 
otherwise  than  by  appeal.     Peters  v.  Peters,  8  Cush.  529. 


464       rUOCEEDINGS  IN  THE  PROBATE  COURTS. 

ble,  be  the  same  as  on  appeals  to  the  supreme  judicial 
court.* 

WHO    ARE    ENTITLED    TO    APPEAL. 

The  right  to  appeal  depends  upon  the  relations  of  the 
appellant  to  the  subject-matter  of  the  decree  or  other 
order.  It  is  not  limited  to  the  parties  directly  connected 
with  the  proceeding  in  question,  but  is  given  to  "  any 
person  aggrieved."  Mere  dissatisfaction  with  the  decree 
gives  no  right  to  an  appeal  from  it.  But  a  person  is 
aggrieved  within  the  meaning  of  the  statute  whenever  his 
rights  are  concluded  or  in  any  way  affected  by  it.^     He 

1  R.  L.  c.  162,  §  18. 

'  One  claiming  property  of  a  deceased  person  under  a  gift  causa 
mortis  is  not  affected  by  decrees  of  the  probate  court  charging  the 
administrator  with  the  property  and  ordering  it  to  be  distributed  to 
the  next  of  kin,  and  cannot  appeal  from  such  decrees,  though  he 
appeared  and  produced  witnesses  in  that  court.  Lewis  v.  Bolitho, 
6  Gray,  137. 

A  testator  bequeathed  money  to  trustees  to  be  managed  as  an  accu- 
mulating fund  for  sixty  years,  and  then  to  be  paid  to  the  town  of  N. 
or  its  agents,  for  the  purpose  of  purchasing  land  within  the  town  for  a 
model  farm.  Held,  that  the  town  could  appeal  from  a  decree  respect- 
ing the  testator's  will.     Northampton  v.  Smith,  11  Met.  390. 

From  a  decree  of  the  probate  court  appointing  a  guardian  to  a 
minor  child,  the  trustees  of  a  fund  bequeathed  for  the  benefit  of  such 
child  have  no  authority  to  appeal.     Deering  v.  Adams,  34  Maine,  41. 

A  creditor  of  the  estate  of  a  deceased  person  cannot  appeal  from  a 
decree  refusing  the  petition  of  the  administrator  for  leave  to  sell  real 
estate  of  the  deceased  for  the  payment  of  debts.  Henry  v.  Estey,  13 
Gray,  330. 

The  stepmother  of  minor  children  whose  parents  are  both  dead 
cannot  appeal  from  a  decree  appointing  a  guardian  for  the  children. 
Lawless  v.  Reagan,  128  Mass.  592.  Nor  can  the  uncle  and  next  friend 
of  a  non  compos  appeal  from  an  allowance  of  the  guardian's  account, 
without  showing  himself  to  be  heir  or  creditor.  Penniman  v.  French, 
2  Mass.  140 ;  Boynton  v.  Dyer,  18  Pick.  4. 

The  creditor  of  a  deceased  person  may  appeal  from  the  granting  of 


APPEALS  FROM  THE  PKOBATE  COURTS.        465 

may  be  aggrieved  when  the  rights  and  interests  to  be 
affected    are    those    which   he    has    in    a    representative 

administration.  Stebbins  v.  Palmer,  1  Pick.  71.  But  a  debtor  cannot 
appeal.     Swan  v.  Picquet,  3  Pick.  413. 

The  party  appealing  nmst  have  some  pecuniary  interest  or  some 
personal  right  whicli  is  immediately  or  remotely  affected  or  concluded 
by  the  decree  appealed  from.     Lawless  v.  Reagan,  128  Mass.  592. 

A  trustee  may  appeal  from  a  decree  refusing  him  leave  to  reopen 
his  account  and  correct  an  error  therein.  Dodd  v.  Winship,  144  Mass. 
461. 

If  an  appeal  from  a  decree  of  the  probate  court  appointing  a  per- 
son administrator  of  an  estate,  upon  his  petition  alleging  that  he  was 
next  of  kin,  fails  because  the  appellant  does  not  prove  that  he  is  a 
party  entitled  to  appeal,  and  is  dismissed  upon  that  ground  only,  the 
decree  stands  as  if  not  appealed  from ;  and  it  is  within  the  power  of 
the  probate  court,  upon  the  petition  of  a  public  administrator,  to 
revoke  and  annul  tliat  decree.     Cleveland  v.  Quilty.  128  Mass.  578. 

A  creditor  cannot  appeal  from  a  decree  appointing  commissioners 
to  receive  and  examine  claims  of  creditors  against  the  estate  of  a 
deceased  person  which  has  been  represented  insolvent,  although  the 
decree  is  made  without  notice  to  the  creditors.  Putney  v.  Fletcher, 
140  Mass.  590. 

One  entitled  to  a  share  in  the  reversion  of  a  trust  fund  to  be  ac- 
counted for,  can  appeal  from  a  decree  allowing  the  executor's  final 
account.     Pierce  v.  Gould,  143  Mass.  234. 

The  next  of  kin  of  an  adopting  parent  who  but  for  the  adoption 
would  be  his  heirs  at  law,  may  appeal  from  a  decree  dismissing  a  peti- 
tion to  revoke  a  decree  of  adoption  on  the  ground  of  fraud  practised 
on  the  court.     Tucker  v.  Fisk,  154  Mass.  574. 

An  appeal  from  a  decree  of  the  judge  of  probate  allowing  the 
account  of  an  executor,  should  be  made  by  the  executor  or  adminis- 
trator of  a  residuary  legatee  where  such  a  one  is  named  in  the  will,  and 
not  by  one  entitled  to  a  distributive  share  of  the  estate  of  such  residu- 
ary legatee.     Downing  v.  Porter,  9  Mass.  386. 

The  probate  court,  in  passing  upon  the  allowance  of  the  account  of 
a  trustee  under  a  will,  may  determine  whether  the  trustee  has  ac- 
counted to  the  parties  entitled  to  the  income  of  the  trust  fund  for  the 
whole  of  the  income  ;  and  the  question  of  the  correctness  of  this  deter- 
mination is  open  on  appeal.  New  England  Trust  Co.  v.  Eaton,  140 
Mass.  532. 

No  appeal  lies  from  a  decree  of  the  probate  court  ordering  that  the 

30 


466       PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

capacity ;  an  administrator  de  bonis  non  may  appeal  from 
the  decree  allowing  the  administration  account  of  the 
original  executor  or  administrator;  ^  and  an  adminis- 
trator appointed  in  another  state,  on  the  estate  of  a 
person  there  deceased,  may  appeal  from  the  decree  of 
a  probate  court  in  this  state  appointing  an  adminis- 
trator here.2  One  who  lias  purchased  lands  of  the  heirs 
or  devisees  may  be  so  interested  as  to  appeal  from  a 
decree  respecting  the  estate  of  the  testator  or  intestate;^ 

account  of  an  administrator  be  not  allowed,  because  he  has  not  charged 
himself  with  the  amount  due  on  a  certain  mortgage,  but  not  ascer- 
taining that  amount,  nor  settling  the  account.  Cook  v.  Horton,  129 
Mass.  527. 

In  cases  where  there  is  a  right  of  appeal  from  the  probate  court,  the 
matter  in  controversy  should  be  judicially  heard  and  considered  in  the 
court  below,  and  a  pro  forma  judgment  merely  should  not  be  entered. 
Parker  v.  Parker,  118  Mass.  110;  Heard  v.  Trull,  175  Mass.  239. 

The  right  of  appeal  to  the  superior  court  given  to  any  boy  con- 
victed and  sentenced  by  a  judge  of  the  probate  court,  extends  to  con- 
victions and  sentences  by  the  judges  of  the  probate  court  under  the 
statutes  of  1870,  c.  359,  and  1871,  c.  365.  Keuney's  Case,  108  Mass. 
492. 

There  can  be  no  appeal  from  the  action  of  the  judge  of  probate 
authorizing  an  action  to  be  biought  in  his  name  on  an  administration 
bond,  for  no  decree  by  him  is  necessary.  Jones,  Appellant,  8  Pick. 
121.     See  Putney  v.  Fletcher,  140  Mass.  596,  and  cases  cited. 

A  widow  of  a  testator  has  a  right  of  appeal  from  the  allowance  of 
the  will  of  her  husband.  Dexter  v.  Codman,  148  Mass.  421.  But  on 
an  appeal  by  one  claiming  to  be  the  widow  of  a  testator,  the  appellant, 
if  the  claim  is  disputed,  must  show  to  a  reasonable  certainty  that  she 
is  the  widow;  otherwise  the  appeal  will  be  dismissed  for  want  of 
jurisdiction.     Pattee  v.  Stetson,  170  Mass.  93. 

1  Wiggin  V.  Swett,  6  Met.  194.    See  Pierce  v.  Gould,  143  Mass.  234. 

2  Smith  V.  Sherman,  4  Cush.  408  ;  Martin  v.  Gage,  147  Mass.  204. 
8  A  purchaser  of  the  reversionary  interest  in  land  of  a  deceased 

insolvent  assigned  to  his  widow  as  dower,  may  appeal  from  the  decree 
of  the  probate  court  appointing  an  administrator  de  bonis  non.  Ban- 
croft V.  Andrews,  6  Cush.  493. 

M  died  seised  of  laud,  one  half  of  which  descended  to  his  daughter 


APPEALS  FROM  THE  PROBATE  COURTS.        4G7 

and  so  may  a  creditor  of  the  heir  or  devisee  under  some 
circumstances.^ 

MANNER  OF  ENTERING  THE  APPEAL. 

Notice  of  the  appeal  must  be  filed  in  the  registry  of 
probate,  and  the  appeal  must  be  entered  in  the  supreme 
judicial  court  within  thirty  days  after  the  act  appealed 
from.  Upon  the  entry  of  the  appeal,  the  appellant  shall 
file  a  statement  of  his  objections  to  the  act  appealed  from. 
A  copy  of  such  notice  and  of  so  much  of  the  record  of  the 

S;  she  married  B,  who  survived  her,  and  became  tenant  by  the  cur- 
tesy of  said  half  of  the  land.  B  conveyed  his  interest  to  C.  Held,  that 
C  could  appeal  from  a  decree  allowing  an  account  which  showed  a 
balance  due  to  M's  administrator,  the  land  being  liable  to  be  sold  to 
satisfy  such  balance.     Bryant  v.  Allen,  6  N.  H.  116. 

Where  a  guardian  was  licensed  to  sell  real  estate  of  his  ward,  and 
the  next  of  kin  of  the  ward  appealed  on  the  ground  that  he,  and  not 
the  ward,  was  the  owner  of  the  land,  it  was  held  that  the  question  of 
title  could  not  be  settled  in  a  probate  court,  and  that  the  appeal  could 
not  be  entertained.     Ayer  v.  Breed,  110  Mass.  548. 

^  When  a  will,  by  which  the  testator's  land  was  devised,  was 
allowed  by  the  probate  court,  it  was  held  that  a  creditor  of  one  of  the 
heirs  at  law  of  the  testator  was  not  entitled,  merely  as  such,  to  appeal 
from  the  decree.  Otherwise,  if  the  creditor  has  attached  such  land  at 
the  time  of  the  decree,  and  appeal  claimed  in  an  action  against  the 
heir.     Smith  v.  Bradstreet,  16  Pick.  264. 

The  surety  in  a  guardian's  bond  may  appeal  from  a  decree  allowing 
the  account  of  his  principal.  Livermore  v.  Bemis,  2  Allen,  394.  And 
see  Farrar  v.  Parker,  3  Allen,  556. 

If  there  is  property  of  a  testator  not  devised  or  bequeathed,  his  heir 
or  next  of  kin  may  appeal  from  the  allowance  of  the  executor's  account. 
Smith  V.  Haynes,  111  Mass.  346. 

A  person  aggrieved  by  the  decree  of  the  probate  court  on  a  petition 
by  the  executor  of  a  will  for  instructions  as  to  the  construction  of  a 
will,  may  appeal.  Swasey  v.  Jacques,  144  Mass.  138  ;  Green  v.  Hogan 
143  Mass.  462. 

An  appeal  lies  from  a  decree  of  the  probate  court  dismissii;g  a  peti- 
tion to  revoke  a  decree  of  adoption,  on  the  ground  of  fraud  practised 
on  the  court.     Tucker  v.  Fisk,  154  Mass.  574. 


468       PROCEEDINGS  IX  THE  PROBATE  COURTS. 

probate  court  as  relates  to  the  appeal  must  be  filed  in  the 
supreme  judicial  court  upon  the  entry  of  the  appeal,  or  as 
soon  as  may  be  thereafter. 

Notice  of  the  entry  of  the  appeal  in  the  supreme  judi- 
cial court  must  be  given  to  all  parties  adversely  interested 
who  have  entered  appearances  in  the  probate  court,  and  it 
will  be  sufficient  to  serve  the  notice  in  the  manner  pro- 
vided by  the  rules  of  court  for  the  service  of  notices  ;  but 
the  court  may  order  such  further  notice  to  be  given  as  it 
may  think  fit. 

A  person  appealing  from  decrees  settling  different 
accounts  of  an  executor,  administrator,  guardian,  or 
trustee,  may  unite  his  appeals  in  one  notice  of  appeal,  and 
enter  the  same  as  one  appeal  in  the  supreme  judicial 
court ;  and  if  an  appeal  shall  be  taken  by  any  other 
person  from  any  of  the  decrees,  or  from  a  decree  made  at 
the  same  time  or  previously,  and  settling  any  other  account 
of  such  executor,  administrator,  guardian,  or  trustee, 
such  appeal  may  be  entered  in  the  supreme  judicial  court 
as  part  of  the  matter  comprised  in  the  appeal  previously 
entered.  The  court  may  deal  with  such  different  ac- 
counts upon  appeal  as  if  they  formed  one  continuous 
account,  and  may  give  effect  to  any  alteration  that  it 
may  make  in  any  account  by  altering  the  balance  of  the 
last  account  without  altering  the  balance  of  any  previous 
account.^ 

The  supreme  judicial  court  or  the  superior  court  may  at 
any  time,  in  its  discretion  and  upon  terms,  consolidate  any 
separate  appeals  from  the  probate  court  pending  therein, 
respectively,  and  may  thereafter  deal  with  such  consolidated 
appeals  together  or  otherwise,  as  justice  may  require.^ 

The    party    appealing    is    not    required  by   statute    to 
1  R.  L.  c.  1G2,  §§  10-12.  2  iijid.  §  27. 


APPEALS  FROM  THE  PROBATE  COURTS.        4C9 

recognize  or   give  any  bond   for   the    prosecution   of   his 
appeal. 

An  appeal  from  the  decision  of  commissioners  or  of  the 
probate  court  upon  a  claim  against  estates  of  deceased 
persons  represented  insolvent,  must  be  claimed  and  notice 
thereof  given  within  thirty  days  after  the  return  of  the 
commissioners  or,  when  the  court  receives  and  examines 
the  claims,  within  thirty  days  after  the  allowance  or  re- 
jection of  the  claim  ;  and  the  appeal  must  be  entered  either 
in  the  supreme  judicial  court  (where  it  can  be  entered  if 
the  claim  exceeds  four  thousand  dollars  in  Suffolk  County 
or  one  thousand  dollars  in  any  other  county),  or  in  the 
superior  court,  on  the  fii'st  Monday  of  the  calendar  month 
next  succeeding  the  expiration  of  said  thirty  days. 

An  appeal  from  the  decision  of  a  court  of  insolvency 
upon  a  claim  against  an  estate  in  insolvency  or  upon  the 
question  of  granting  a  discharge  must  be  claimed  and 
notice  thereof  given  within  ten  days  after  the  decision 
appealed ^  from  ;  and  the  appeal  must  be  entered  in  the 
superior  court  for  the  county  at  the  return  day  next  after 
the  expiration  of  fourteen  days  from  the  time  of  claim- 
ing it. 

Upon  the  entry  of  an  appeal  by  a  creditor,  he  must  file 
a  statement  of  his  claim  substantially  as  in  a  declaration 
in  an  action  at  law.  Upon  an  appeal  from  a  decision 
granting  or  refusing  a  discharge  to  an  insolvent  debtor, 
the  superior  court,  upon  written  demand  filed  with  the  clerk 
by  the  debtor,  the  assignee,  or  a  creditor,  frames  issues 
of  fact  to  be  tried  by  a  jury  ;  but  if  no  such  demand  is 
made,  the  appeal  is  heard  and  determined  by  the  court.^ 

1  R.  L.  c.  142,  §§  12,  13;  c.  16-3,  §§  45,  104,  105. 
Xo  appeal  lies  to  the  superior  court  from  a  decree  of  the  court 
of  insolvency  annulling  a  discharge  granted  to  an  insolvent  debtor. 


470       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Froceedinijs  when  Appeal  is  omitted  to  be  taken  in 
Season.  —  The  statute  provides  tliat  if  a  person  aggrieved 
omits  to  claim  or  prosecute  his  appeal,  without  default 
on  his  part,  the  supreme  court  of  probate,  or  superior 
court  in  cases  where  it  is  provided  by  law  that  appeals 
shall  be  taken  to  the  superior  court,i  if  it  appears  that 
justice  requires  a  revision  of  the  case,  may,  on  the  petition 
of  the  party  aggrieved  and  upon  terms,  allow  an  appeal 
to  be  entered  and  prosecuted.  Such  petition  may  be  en- 
tered iu  the  clerk's  office  at  any  time,  and  the  order  of 
notice  thereon  may  be  made  returnable  at  a  rule  day.^  A 
copy  of  the  record,  attested  by  the  register  of  probate, 
should  be  filed  with  the  petition.  Such  appeal  cannot 
be  allowed  without  due  notice  to  the  party  adversely  in- 
terested, nor  unless  the  petition  therefor  is  filed  within 
one  year  after  passing  the  decree  or  order  complained  of, 
except  that  if  the  petitioner  was  without  the  United  States 
at  the  time  of  passing  the  decree  or  order,  he  may  file  his 

Pierce  v.  Keene,  173  Mass.  431.  Nor  from  a  decree  making  an  allow- 
ance  to  an  insolvent  debtor.     KafEenburg  i'.  Assner,  163  Mass.  295. 

One  of  two  assignees  in  insolvency  may  appeal  from  an  order  grant- 
ing the  discharge  of  an  insolvent  debtor,  where  the  refusal  of  his  co- 
assignee  to  join  in  the  appeal  appears  of  record.  Paul  v.  Costello, 
177  Mass.  580. 

^  Capen  v.  Skinner,  139  Mass.  190. 

The  entry  should  be  made  at  the  term  at  which  leave  is  granted  ; 
and  if  not  made  until  the  second  term  held  in  the  county  after  the 
leave  is  granted,  it  will  be  too  late.  Robinson  v.  Durfee,  7  Allen, 
242. 

If  the  probate  court  upon  the  petition  of  a  wife  for  separate  support 
enters  a  decree  by  consent  of  both  parties  that  the  husband  pay  to  the 
wife  a  sum  in  gross  as  the  whole  sum  to  which  she  is  entitled  by  way 
of  separate  support,  and  the  husband  pays  such  sum  to  the  wife,  who 
gives  a  receipt  for  it  and  never  offers  to  return  it,  she  thereby  waives 
her  right  to  appeal  from  the  decree  upon  the  ground  that  the  sum 
awarded  is  insufficient.     Doole  v.  Doole,  144  Mass.  278. 

2  R.  L.  c.  162,  §  13. 


APPEALS  FROM  THE  PROBATE  COURTS.        471 

petition  at  any  time  within  three  months  after  his  return, 
and  within  two  years  after  the  act  complained  of.^  The 
appeal  should  be  entered  at  the  term  at  which  leave  is 
granted.2 

EFFECT   OF   THE   APPEAL. 

After  an  appeal  is  claimed  and  notice  given  at  the  pro- 
bate office,  all  proceedings  in  pursuance  of  the  act  appealed 
from  are  stayed,  except  as  otherwise  expressly  provided, 
until  the  determination  thereof  by  the  supreme  court  of 

1  R.  L.  c.  162,  §  14;  Capen  v.  Skinner,  139  Mass.  190;  Briggs  v.  Barker, 
145  Mass.  287;  Daley  v.  Francis,  153  Mass.  10.  This  provision 
does  not  authorize  the  entry  of  an  appeal  when  the  decree  of  the 
court  below  has  been  executed.  After  a  widow  has  received  the 
amount  of  an  allowance,  no  appeal  can  be  taken  by  her,  nor  allowed 
on  her  petition,  from  the  decree  making  the  allowance.     Hale  v.  Hale, 

1  Gray,  522.     See  Pettee  v.  Wilmarth,  5  Allen,  144. 

An  heir  at  law  who  has  notice  of  an  appeal  taken  by  another  heir 
at  law  from  the  probate  of  a  will  and  takes  no  steps  towards  prose- 
cuting that  appeal,  cannot,  after  the  expiration  of  thirty  days,  though 
within  a  year,  from  the  decree,  and  after  it  has  been  affirmed  by  the 
supreme  court,  by  consent  of  the  first  appellee,  obtain  leave  to  make 
a  new  appeal,  under  this  statute,  or  to  have  the  decree  of  affirmance 
set  aside.  Such  heir  might  have  petitioned  to  become  a  party  to  the 
appeal,  or  to  enter  an  appeal  in  his  own  behalf,  and  then  have  prose- 
cuted it  to  a  final  result,  although  the  first  appellant  had  withdrawn 
his  appeal.     Kent  v.  Dunham,  14  Gray,  279.     See  Livermore  v.  Bemis, 

2  Allen,  394;  Jacobs  v.  Jacobs,  110  Mass.  229. 

^  Robinson  v.  Durfee,  7  Allen,  242.  If  an  appellant  who  claims 
his  appeal  seasonably,  gives  due  notice  thereof,  and  duly  files  and 
serves  upon  the  adverse  party  his  reasons  of  appeal;  omits  through 
accident  and  mistake  to  enter  his  appeal  in  the  appellate  court,  he  is 
not  entitled  to  maintain  a  petition  to  the  appellate  court  for  leave  to 
enter  the  appeal,  filed  more  than  a  year  after  the  decree  of  the  probate 
court  was  rendered.     Briggs  v.  Barker,  145  Mass.  287. 

The  late  entry  of  a  probate  appeal  with  the  appellee's  written  con- 
sent during  the  time  in  which  an  entry  is  authorized  to  be  made  upon 
petition  and  notice,  confers  the  same  jurisdiction  as  if  it  had  been 
seasonably  entered.     Daley  v.  Francis,  153  Mass.  8. 


472       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

probate;  but  if,  upon  such  appeal,  such  act  is  affirmed,  it 
will  thereafter  be  of  full  force  and  validity.^  But  if  the 
appellant  in  writing  waives  his  appeal  before  the  entry 
thereof,  proceedings  may  be  had  in  the  probate  court  as  if 
no  appeal  had  been  taken. 

There  is  a  great  difference  between  the  effect  of  an 
appeal  from  the  decision  of  a  probate  court  and  an  appeal 
from  the  judgment  of  other  courts.     An  appeal  from  the 

1  R.  L.  c.  162,  §  16;  Gale  v.  Ninkersoii,  144  Mass.  416.  But  in 
case  of  an  appeal  from  a  decree  appointing  a  special  administrator, 
he  nevertheless  proceeds  in  the  execution  of  his  duties  until  it  is 
otherwise  ordered  by  the  supreme  court  of  probate.  And  an  appeal 
from  a  decree  making  an  allowance  to  the  widow  or  children  of  the 
deceased,  from  the  real  or  personal  property  in  Ihe  hands  of  a  special 
administrator,  will  not  prevent  the  payment  of  the  allowance  if  the 
petitioner  gives  bond  to  the  special  administrator,  with  sureties  ap- 
proved by  the  court,  and  conditioned  to  repay  the  same,  if  the  decree 
is  reversed.     R.  L.  c.  137,  §§  9,  12. 

And  a  decree  of  the  probate  court  or  of  a  single  justice  of  the 
supreme  court  of  probate  removing  an  executor,  administrator,  guar- 
dian, or  trustee,  and  a  decree  of  the  probate  court  on  petition  of  a 
wife  who  is  living  apart  from  her  husband,  for  support,  will  have 
effect,  notwithstanding  an  appeal,  until  otherwise  ordered  by  the 
supreme  court.  R.  L.  c.  162,  §§  19,  20.  After  an  appeal  has  been 
claimed  from  an  order  or  decree  referred  to  in  the  two  preceding 
sections,  and  before  such  appeal  has  been  finally  determined,  a  justice 
of  the  supreme  court  of  pi-obate  may  suspend  or  modify  such  order  or 
decree  during  the  pendency  of  such  appeal.  Ibid.  §  22;  Doole  v, 
Doole,  144  Mass.  280;  Gray  «.  Parke,  155  Mass.  437. 

And  an  appeal  from  a  final  or  interlocutory  order  or  decree  in  equity 
of  a  probate  court  which  is  made  in  the  exercise  of  any  jurisdiction  in 
equity  conferred  upon  it,  shall  not  suspend  or  stay  proceedings  under 
such  order  or  decree  pending  the  appeal.  But  the  probate  court,  or 
a  justice  of  the  supreme  judicial  court,  in  case  of  appeal,  may  stay 
all  proceedings  under  such  order  or  decree  pending  the  appeal,  and  may 
make  such  orders  as  shall  be  necessary  or  proper  to  protect  the  rights 
of  persons  interested,  pending  the  appeal  ;  or  may  vary  or  discharge 
upon  motion  any  such  order  of  the  probate  court  for  a  stay  of  pro- 
ceedings, or  for  protection  of  any  such  rights.     R.  L.  c.  162,  §  17. 


APPEALS   FROM    THE    PROBATE   COURTS.  473 

judgment  of  other  courts  removes  the  cause  itself  to  the 
appellate  court,  vacates  the  judgment  of  the  lower  court, 
and  the  appellate  court  renders  judgment  therein  and 
enforces  the  judgment  by  it  own  process. 

The  order  or  decree  of  the  probate  court  is  not  vacated 
by  an  appeal,  but  is  suspended  ;  and,  upon  being  affirmed 
by  the  supreme  court,  it  takes  effect  and  operates  as  a 
decree  of  the  probate  court,  and  any  intermediate  action 
which  may  have  been  had  under  the  decree  is  valid. 

For  example,  when  a  will  has  been  allowed  by  a  decree 
of  the  probate  court  and  the  executor  has  given  bond,  and, 
upon  appeal,  the  decree  allowing  the  will  is  affirmed  by  the 
supreme  court,  the  bond  continues  in  force  as  if  no  appeal 
had  been  taken  ;  the  authority  of  the  executor  being  merely 
suspended  during  the  pendency  of  the  appeal ;  and,  upon 
filing  in  the  probate  court  a  certified  copy  of  the  affirm- 
ance by  the  supreme  court  of  the  decree  of  the  probate 
court,  the  executor  can  proceed  in  the  discharge  of  his 
duties  without  giving  a  new  bond  and  without  other  for- 
malities.^ Of  course  such  certified  copy  of  a  decree  of  a 
single  justice  of  the  supreme  court  should  not  be  filed 
until  after  the  time  has  expired  for  appeal  to  the  full  court, 
unless  appeal  is  waived. 

THE  PROCEEDINGS  IN  THE  APPELLATE  COURT. 

Appeals  and  petitions  for  appeal  are  entered  on  a  docket 
in  the  appellate  court  with  cases  in  equity,  and  have  the 

^  Dunham  v.  Dunham,  16  Gray,  577;  Gale  v.  Nickerson,  144 
Mass.  416. 

But  in  case  of  an  appeal  from  the  decree  of  the  probate  court  allow- 
ing a  will,  the  two  years  within  which  an  executor  shall  be  held  to 
answer  to  the  suit  of  a  creditor  of  the  deceased  begin  to  run  from  the 
date  when  the  decree  of  the  probate  court  is  affirmed.  Smith  v. 
Smith,  175  Mass.  483. 


474       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

same  rights  as  to  hearing  and  determination  as  such 
cases. 

The  supreme  judicial  court  may,  upon  appeal,  reverse  or 
affirm,  in  whole  or  in  part,  any  decree  or  order  of  the 
probate  court,  and  may  enter  such  decree  thereon  as  the 
probate  court  ought  to  have  entered,  may  remand  the  case 
for  further  proceedings,  or  make  any  other  order  therein, 
as  law  and  justice  may  require. 

The  supreme  judicial  court,  upon  request  of  a  party  to  a 
probate  matter  pending  therein,  may  in  its  discretion  frame 
issues  of  fact  to  be  tried  by  a  jury  and  direct  them  to  be 
tried  in  the  supreme  judicial  court  or  in  the  superior  court 
in  the  county  in  which  the  matter  is  pending  or  upon  the 
request  of  all  parties,  in  any  other  county .^ 

The  appeal  gives  no  jurisdiction  to  the  appellate  court 
to  proceed  in  the  settlement  of  an  estate,  but  only  to 
reconsider  the  order  appealed  from  ;  and  its  judgment  is 
carried  into  effect  by  the  probate  court,  whose  jurisdiction 
over  the  cause  and  the  parties  is  not  taken  away  by  the 
appeal  .2 

A  justice  either  of  the  supreme  judicial  court  or  of  the 
superior  court,  or  the  full  court,  may,  if  necessary,  hear 

1  R.  L.  c.  162,  §§  15,  23,  25;  Bridge  v.  Bridge,  146  Mass.  377; 
Francis  v.  Daley,  150  Mass.  383  ;  Daley  v.  Francis,  153  Mass.  10. 

When  a  debt  claimed  by  an  executor  or  administrator  as  a  debt  due 
to  him  from  the  deceased  is  disputed  on  an  appeal,  either  party  or  the 
court  may  have  the  claim  submitted  to  a  jury.     R.  L.  c.  141,  §  7. 

In  probate  cases  the  framing  of  issues  in  the  supreme  court  of  pro- 
bate rests  in  the  discretion  of  the  presiding  justice,  and  his  decision 
discharging  an  issue  after  a  trial  thereon  before  him  will  not  be  dis- 
turbed, in  the  absence  of  anything  to  show  that  he  was  wrong.  Fay 
V.  Vanderford,  154  Mass.  498;  Fiske  v.  Pratt,  157  Mass.  83;  Doherty 
V.  O'Callaghan,  ibid.  90;  McKay  v.  Kean,  167  Mass.  524;  Parker  i'. 
Simpson,  180  Mass.  234. 

^  Dunham  v.  Dunham,  16  Gray,  578;  Gale  v.  Nickerson,  144  Mass. 
416. 


APPEALS  FROM  THE  PROBATE  COURTS.        475 

and  determine  cases  pending  in  a  county  other  than  that 
in  which  such  justice  or  court  is  sitting.^ 

An  appeal  lies  from  the  decision  of  a  single  judge  of 
the  supreme  court  of  probate  to  the  full  court  in  matter  of 
fact  as  well  as  of  law.^ 

COMPLAINT   FOR   AFFIRMATION   OP  DECREE. 

If  the  appellant  fails  to  enter  and  prosecute  his  appeal, 
the  supreme  court  of  probate  may,  upon  the  complaint  of 
any  person  interested,  affirm  the  former  decree  or  order, 
or  make  such  other  order  as  law  and  justice  require.  Such 
complaint  must  be  in  writing,  and  should  set  forth  the 
fact  that  the  appeal  was  taken,  and  that  the  appellant  has 
failed  to  enter  and  prosecute  it,  and  pray  for  an  affirma- 
tion of  the  decree  and  for  an  allowance  of  costs.  With 
the  complaint  must  also  be  filed  a  copy  of  the  decree  ap- 
pealed from,  and  of  the  papers  in  the  case  attested  by 
the  register  of  probate. 

If  the  appellant  fails  to  enter  his  appeal  within  the  time 
allowed  by  law,  the  probate  court  from  which  the  appeal 
was  taken  may,  upon  petition  of  any  person  interested, 
and  upon  such  notice  to  the  appellant  as  the  court  shall 
order,  dismiss  the  appeal  and  affirm  the  decree  or  order 
appealed  from  ;  and  further  proceedings  may  then  be  had 
in  the  probate  court  as  if  no  appeal  had  been  taken.^ 

1  R.  L.  c.  159,  §  35;  Ripley  v.  Collins,  162  Mass.  450. 

2  Wright  V.  Wright,  13  Allen,  207;  Slack  v.  Slack,  123  Mass.  443. 
8  R.  L.  c.  162,  §  24;  Daley  v.  Francis,  153  Mass.  10. 

If  a  master  on  an  appeal  from  a  decree  allowing  an  executor's 
account  declines  to  revise  the  compensation  allowed  to  the  executor, 
his  report  will  be  recommitted  if  the  appellant  so  desires.  Bridge  i'. 
Bridge,  146  Mass.  373. 

On  an  appeal  by  one  only  of  the  persons  interested  in  real  estate 
from  a  decree  of  the  probate  court  granting  a  license  to  sell  it,  the 
question  of  title,  except  so  far  as  any  doubt  regarding  it  may  affect 


476  PROCEEDINGS    IN    THE    PROBATE    COURTS. 

APPEALS    FROM    ALLOWANCE   OF   CLAIMS    AGAINST   INSOLVENT 
ESTATES   OF   DECEASED    PERSONS. 

Such  appeal  shall  be  claimed  and  notice  thereof  given 
at   the    registry    of    probate    within   thirty  days  after  the 

the  expediency  of  the  sale,  is  not  properly  before  the  court,  and  if 
there  is  no  waiver  of  the  objection,  cannot  be  determined.  Walker 
V.  Fuller,  147  Mass.  489. 

The  date  of  a  decree  of  the  probate  court,  as  recited  therein,  can- 
not be  controlled  by  other  evidence  upon  an  appeal  from  the  decree, 
but  the  party  aggrieved  should  apply  to  that  court  to  correct  the  error, 
if  any.     Newell  v.  West,  149  Mass.  520. 

An  appeal  in  a  probate  matter  from  the  final  decree  of  a  single  jus- 
tice of  the  supreme  judicial  court  is  thereupon  pending  before  the  full 
court,  which  upon  a  waiver  of  the  appeal  will  affirm  such  decree. 
Gray  v.  Gray,  150  Mass.  56. 

In  appeals  to  the  full  court  from  a  decree  of  a  single  justice  of  the 
supreme  judicial  court  in  a  probate  appeal,  his  decision  will  not  be 
reversed  as  to  matters  of  fact,  unless  it  clearly  appears  to  be  eri'oneous. 
Ilodgdon  V.  Cummings,  151  Mass.  293. 

Items  of  date  later  than  a  probate  account  are  not  to  be  brought 
before  the  supreme  court  of  probate  on  an  appeal  in  the  first  instance 
from  a  decree  disallowing  certain  items  in  a  guardian's  account. 
May  V.  Skinner,  152  Mass.  328. 

On  an  appeal  from  a  decree  that  an  interest  in  real  estate  was  per- 
sonal property,  and  charging  the  executor  with  it,  when  the  reason  of 
appeal  filed  was  that  the  executor  was  not  charged  to  the  full  value 
of  such  interest,  the  executor  was  allowed  to  show  that  he  was  not 
chargeable  with  such  interest  to  all.     Harris  v.  Harris,  153  Mass.  439. 

On  the  trial  of  a  probate  appeal,  the  appellant  is  restricted  to  the 
matters  stated  in  the  reasons  of  appeal  filed  in  the  case.  Cowdeu  v. 
Jacobson,  165  Mass.  241. 

A  decree  of  distribution  of  the  probate  court  can,  on  appeal,  be 
revised  after  the  executor  has  distributed  the  estate  as  ordered  by  the 
probate  court,  so  as  to  enable  one  entitled  to  share  in  the  estate,  but 
who  was  omitted  by  mistake  in  the  order  of  distribution  and  who  is 
not  chargeable  with  laches,  to  recover  his  share  from  those  to  whom 
the  estate  was  distributed.     Harris  r.  Starkey,  176  Mass.  445. 

As  to  rights  of  the  legal  representatives  of  an  appellant  dying 
while  appeal  is  pending,  see  Bonnemort  v.  Gill,  167  Mass.  338. 


appp:als  from  the  probate  courts.  477 

return  of  the  commissioners,  or  when  the  court  itself 
receives  and  examines  the  claims,  within  thirty  days  after 
the  allowance  or  rejection  of  the  claim.  If  the  appeal 
is  by  an  executor  or  administrator,  he  shall  give  notice 
thereof  to  the  creditor  within  said  thirty  days.  The  ap- 
peal shall  be  entered  on  the  first  Monday  of  the  calendar 
month  next  succeeding  the  expiration  of  said  thirty  days. 

Upon  the  entry  of  the  appeal  the  supposed  creditor  shall 
file  a  statement  in  writing  of  his  claim,  setting  forth 
briefly  and  distinctly  all  the  material  facts  which  would  be 
necessary  in  a  declaration  for  the  same  cause  of  action ; 
and  like  proceedings  shall  be  had  in  the  pleadings,  trial, 
and  determination  of  the  cause,  as  in  an  action  at  law ; 
but  no  execution  shall  be  awarded  against  the  executor  or 
administrator  for  a  debt  found  due  to  the  claimant.  The 
appellate  court  shall  have  the  same  power  as  the  probate 
court  or  the  commissioners  to  examine  the  claimant,  and 
the  final  judgment  shall  be  conclusive,  and  the  list  of 
debts  allowed  shall  be  altered,  if  necessary,  to  conform 
thereto. 

After  the  claiming  of  such  appeal,  the  parties  may 
waive  a  trial  at  law  and  submit  the  claim  to  the  deter- 
mination of  arbitrators  to  be  agreed  on  by  the  parties  and 
appointed  by  the  probate  court,  and  thereupon  the  appeal 
shall  not  be  entered.  The  award  of  such  arbitrators,  if 
accepted  by  the  court,  shall  be  as  conclusive  as  a  judgment 
in  a  court  of  common  law. 

The  party  prevailing  upon  such  appeal  shall  be  entitled 
to  costs,  which,  if  recovered  against  the  executor  or  ad- 
ministrator, may  be  allowed  to  him  in  his  administration 
account. 

If  a  person  whose  claim  has  been  disallowed  by  the  com- 
missioners or  by  the  probate  court,  omits  for  other  cause 


478       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

than  his  own  neglect,  to  claim  or  prosecute  his  appeal  as 
before  provided,  the  supreme  judicial  court  in  any  county, 
may,  upon  his  petition  therefor  filed  within  two  years  after 
the  return  of  the  commissioners,  and  within  four  years 
after  the  date'  of  the  administration  bond,  allow  him  upon 
terms  to  enter  and  prosecute  his  appeal. 

The  allowance  of  such  appeal  and  the  judgment  thereon 
shall  not  disturb  any  distribution  ordered  before  notice 
of  the  petition,  or  of  the  intention  to  present  the  same, 
has  been  given  in  writing  at  the  registry  of  probate  or  to 
the  executor  or  administrator ;  but  any  debt  thus  proved 
and  allowed  shall  be  paid  only  out  of  such  assets  as 
remain  in  or  come  to  the  hands  of  the  executor  or  admin- 
istrator after  payment  of  the  sums  payable  on  such  prior 
decree  of  distribution.^ 

1  R.  L.  c.  U2,  §§  12-17. 


CHAPTER  XXII. 

ADOPTION  OF  CHILDREN  AND   CHANGE  OF  NAME. 

ADOPTION. 

[Revised  Laws,  c.  154.] 

"  Sect.  1.  A  person  of  full  age  may  petition  the  probate 
court  in  the  county  in  which  he  resides  for  leave  to  adopt 
as  his  child  another  person  younger  than  himself,  unless 
such  other  person  is  his  or  her  wife,  husband,  brother, 
sister,  uncle,  or  aunt,  either  of  the  whole  or  half  blood.  If 
the  petitioner  has  a  husband  or  wife  living,  who  is  com- 
petent to  join  in  the  petition,  such  husband  or  wife  shall 
join  therein,  and  upon  adoption  the  child  shall  in  law  be 
the  child  of  both.  If  a  person  who  is  not  an  inliabitant  of 
this  commonwealth  desires  to  adopt  a  child  who  resides 
here,  the  petition  may  be  made  to  the  probate  court  in  the 
county  in  which  the  child  resides."  ^ 

"  Sect.  2.  A  decree  for  such  adoption  shall  not  be 
made,  except  as  hereinafter  provided,  without  the  written 

1  At  the  trial  of  petitions  to  set  aside  decrees  of  adoption  of  two 
nieces  and  a  nephew,  the  adopting  parent  being  seventy  years  old 
and  the  adopted  children  being  respectively  forty-three,  thirty-nine, 
and  twenty-five  years  old,  requests  for  rulings  that  it  is  not  competent 
under  the  adoption  law  "  for  a  person  in  the  senile  age  of  life  to 
adopt  persons  in  the  prime  and  vigor  of  life,"  or  "for  an  adoption  to 
be  made  for  the  purpose  of  operating  simply  as  and  to  take  the  place 
of  a  last  will  and  testament;"  were  rightly  refused,  although  the  court 
found  that  an  important  purpose  of  the  adopting  parent  was  to  make 
the  adopted  persons  his  heirs  at  law.  Collamore  v.  Learned,  171 
Mass.  99. 


480       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

consent  of  the  child,  if  it  is  above  the  age  of  fourteen 
years ;  of  her  husband,  if  she  is  a  married  woman  ;  of  the 
lawful  parents,  or  surviving  parent ;  of  the  parent  having 
the  lawful  custody  of  the  child,  if  the  parents  are  divorced 
or  are  living  separately ;  of  the  guardian  of  the  child,  if 
any  ;  of  the  mother  only  of  the  child,  if  illegitimate  ;  or  of 
the  person  substituted  for  any  of  the  above-named  by  the 
provisions  of  this  chapter.  A  person  whose  consent  is 
hereby  required  shall  not  thereby  be  debarred  from  being 
the  adopting  parent.  If  the  child  has  been  previously 
adopted,  the  consent  of  the  previous  adopting  parent  shall 
also  be  required." 

"  Sect.  3.  The  consent  of  the  persons  named  in  the 
preceding  section,  other  than  the  child  or  her  husband, 
if  any,  shall  not  be  required  if  the  person  to  be  adopted  is 
of  full  age,  nor  shall  the  consent  of  any  such  person  other 
than  the  child  be  required  if  such  person  is  adjudged  by 
the  court  hearing  the  petition  to  be  hopelessly  insane,  or 
is  imprisoned  in  the  state  prison  or  in  a  house  of  correc- 
tion in  this  commonwealth  under  sentence  for  a  term  of 
which  more  than  three  years  remain  unexpired  at  the 
date  of  the  petition ;  or  if  he  has  wilfully  deserted  and 
neglected  to  provide  proper  care  and  maintenance  for 
such  child  for  two  years  last  preceding  the  date  of  the 
petition;  or  if  he  has  suffered  such  child  to  be  supported 
for  more  than  two  years  continuously,  prior  to  the  petition, 
by  an  incorporated  charitable  institution  or  as  a  pauper  by 
a  city  or  town  or  by  the  commonwealth  ;  or  if  he  has  been 
sentenced  to  imprisonment  for  drunkenness  upon  a  third 
conviction  within  one  year  and  neglects  to  provide  proper 
care  and  maintenance  for  such  child  ;  or  if  such  person 
has  been  convicted  of  being  a  common  night-walker,  or 
a   lewd,  wanton,  and   lascivious  person,  and  neglects  to 


ADOPTION    OF   CHILDREN    AND    CHANGE    OF    NAME.       481 

provide  proper  care  and  maintenance  for  such  child.  A 
giving  up  in  writing  of  a  child,  for  the  purpose  of  adoption, 
to  an  incorporated  charitable  institution,  shall  operate  as  a 
consent  to  any  adoption  subsequently  approved  by  such 
institution.  Notice  of  the  petition  shall  be  given  to  the 
state  board  of  charity,  if  the  child  is  supported  as  a  pauper 
by  a  city  or  town  or  by  the  commonwealth." 

"Sect.  4.  If  the  written  consent  required  by  the  pro- 
visions of  the  two  preceding  sections  is  not  submitted  to 
the  court  with  the  petition,  the  court  shall  order  notice  by 
personal  service  on  the  parties  of  a  copy  of  the  petition 
and  order  thereon,  or,  if  they  are  not  found  within  this 
commonwealth,  by  publication  of  the  petition  and  order 
once  in  each  of  three  successive  weeks  in  such  newspaper 
as  the  court  orders,  the  last  publication  to  be  seven  days  at 
least  before  the  time  appointed  for  the  hearing,  and  the 
court  may  require  additional  notice  and  consent."  ^ 

"  Sect,  5.  If,  after  such  notice,  a  person  whose  consent 
is  required  does  not  appear  and  object  to  the  adoption,  the 
court  may  act  upon  the  petition  without  his  consent,  sub- 

1  Notice  of  a  petition  for  the  adoption  of  a  child  is  necessary  in  all 
cases  ■where  the  written  consent  required  by  section  2  is  not  submitted 
to  the  court  with  the  petition,  even  if  a  case  is  presented  by  the  peti- 
tion, which,  if  proved  to  exist,  would  authorize  the  judge  of  probate 
to  decree  the  adoption  without  consent.  Humphrey,  Appellant,  137 
Mass.  84. 

The  probate  court  may  decree  the  adoption  of  a  child  whose  parents 
are  unknown  and  are  not  brought  within  any  of  the  exceptions  of  §  3, 
and  who  has  no  guardian,  and  who  has  not  been  given  up  in  writing, 
for  the  purpose  of  adoption,  to  a  charitable  institution  incorporated  by 
law;  and  the  probate  court,  after  the  notice  required  by  §  4  has  been 
given,  may  appoint  a  guardian  ad  litem  for  such  child,  with  power  to 
give  or  withhold  consent  to  such  adoption.  Edds,  Appellant,  137 
Mass.  346. 

Notice  to  the  father  of  an  illegitimate  minor  of  an  application  for 
its  adoption  is  not  required.     Gibson,  Appellant,  154  Mass.  378. 

31 


482       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

ject  to  his  right  of  appeal,  or  it  may  appoint  a  guardian 
ad  litem,  with  power  to  give  or  withhold  consent."  ^ 

"  Sect.  6.  If  the  court  is  satisfied  of  the  identity  and 
relations  of  the  persons,  and  that  the  petitioner  is  of  suffi- 
cient ability  to  bring  up  the  child  and  provide  suitable  sup- 
port and  education  for  it,  and  that  the  child  should  be 
adopted,  it  shall  make  a  decree,  by  which,  except  as  re- 
gards succession  to  property,  all  rights,  duties,  and  other 
legal  consequences  of  the  natural  relation  of  child  and 
parent  shall  thereafter  exist  between  the  child  and  the 
petitioner  and  his  kindred,  and  shall,  except  as  regards 
marriage,  incest,  or  cohabitation,  terminate  between  the 
person  so  adopted  and  his  natural  parents  and  kindred  or 
any  previous  adopting  parent ;  but  such  decree  shall  not 
place  the  adopting  parent  or  adopted  child  in  any  relation 
to  any  person,  except  each  other,  different  from  that  before 
existing  as  regards  marriage,  rape,  incest,  or  other  sexual 
crime  committed  by  either  or  both.  The  court  may  also 
decree  such  change  of  name  as  the  petitioner  may  request. 
If  the  person  so  adopted  is  of  adult  age,  he  shall  not  be 
freed  by  such  decree  from  tbe  obligations  imposed  by  the 
provisions  of  section  ten  of  chapter  eighty-one."  ^ 

"  Sect.  7.  A  person  who  is  adopted  in  accordance  with 
the  provisions  of  this  chapter  shall  take  the  same  share  of 
the  property  which  the  adopting  parent  could  dispose  of  by 

^  If  the  parents  of  the  child  to  be  adopted  are  dead,  and  the  probate 
court,  on  the  petition  of  the  guardian  of  the  child  for  leave  to  adopt  it, 
which  is  assented  to  by  the  petitioner  as  guardian,  makes  a  decree  in 
accordance  with  the  prayer  of  the  petition,  the  fact  that  no  guardian 
ad  litem  was  appointed,  even  if  such  appointment  should  have  been 
made,  does  not  make  the  decree  void,  but  voidable  only.  Sewall  v. 
Roberts,  115  Mass.  262. 

•^  An  adopted  child  acquires  the  settlement  of  its  father  by  adop- 
tion.    Washburn  v.  White,  140  Mass.  568. 


ADOPTION   OF   CHILDREN   AND   CHANGE   OF   NAME.       483 

will  as  he  would  have  taken  if  born  to  such  parent  in  law- 
ful wedlock,  and  he  shall  stand  in  regard  to  the  legal 
descendants,  but  to  no  other  of  the  kindred  of  such  adopt- 
ing parent,  in  the  same  position  as  if  so  born  to  him.  If 
the  person  adopted  dies  intestate,  his  property,  acquired 
by  himself  or  by  gift  or  inheritance  from  his  adopting 
parent,  or  from  the  kindred  of  such  parent,  shall  be  distrib- 
uted according  to  the  provisions  of  chapters  one  hundred  and 
thirty-three  and  one  hundred  and  forty  among  the  persons 
who  would  have  been  his  kindred  if  he  had  been  born  to 
his  adopting  parent  in  lawful  wedlock  ;  and  property  re- 
ceived by  gift  or  inlieritance  from  his  natural  parents  or 
kindred  shall  be  distributed  in  the  same  manner  as  if  no 
act  of  adoption  had  taken  place.  The  apportionment  and 
distribution  shall  be  ascertained  by  the  court.  A  person 
shall  not  by  adoption  lose  his  right  to  inherit  from  his 
natural  parents  or  kindred."  ^ 

"  Sect.  8.  The  word  child,  or  its  equivalent,  in  a  grant, 
trust-settlement,  entail,  devise,  or  bequest,  shall  include  a 
child  adopted  by  the  settlor,  grantor,  or  testator,  unless 
the  contrary  plainly  appears  by  the  terms  of  the  instru- 

^  An  adopted  cliild  who  is  at  the  same  time  the  grandchild  of  the 
adopting  father  cannot  inherit  the  property  of  his  grandfather  in  a 
twofold  capacity  as  his  son  and  as  his  grandson.  Delano  v.  Bruerton, 
148  Mass.  619. 

A  child  by  adoption  is  "issue"  within  R.  L.  c.  140,  §  3.  The 
general  intent  of  the  statute  is  to  place  the  adopted  child  in  relation 
to  the  adopting  parents,  so  far  as  their  property  is  concerned,  in  the 
same  position  that  he  would  be  if  their  natural  child.  Buckley  v. 
Frasier,  153  Mass.  525. 

A  child  who  has  been  adopted  by  and  has  taken  the  name  of  the 
testator  is  not  entitled  to  the  same  share  of  his  estate  as  if  he  had 
died  intestate,  when  by  the  will  made  before  the  adoption  special 
provision  is  made  for  her  by  the  name  she  then  bore.  Bowdlear  v. 
Bowdlear,  112  Mass.  184. 


484       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

ment  ;  but  if  the  settlor,  grantor,  or  testator  is  not  him- 
self the  adopting  parent,  the  child  by  adoption  shall  not 
have,  under  such  instrument,  the  rights  of  a  child  born  in 
lawful  wedlock  to  the  adopting  parent,  unless  it  plainly 
appears  to  have  been  the  intention  of  the  settlor,  grantor, 
or  testator  to  include  an  adopted  child."  ^ 

"  Sect.  9.  An  inhabitant  of  another  state,  adopted  as 
a  child  in  accordance  with  the  laws  thereof,  shall  upon 
proof  of  such  fact  be  entitled  in  this  commonwealth  to  the 
same  rights  of  succession  to  property  as  he  would  have 
had  in  the  state  in  which  he  was  adopted,  except  so  far 
as  such  rights  are  in  conflict  with  the  provision  of  this 
chapter,"  ^ 

"  Sect.  10.  If  the  child  has  been  previously  adopted, 
all  the  legal  consequences  of  the  former  decree  shall,  upon 
a  'subsequent  adoption,  determine,  except  so  far  as  any 
interest  in  property  may  have  vested  in  the  adopted  child, 
and  a  decree  to  that  effect  shall  be  entered  upon  the  rec- 
ords of  the  court." 

"  Sect.  11.  The  supreme  judicial  court  may  allow  a 
parent  who,  upon  a  petition  for  adoption,  had  no  personal 
notice  of  the  proceedings  before  the  decree,  to  appeal 
therefrom  at  any  time  within  one  year  after  actual  notice 
thereof,  if  he  first  makes  oath  that  he  was  not,  at  the  time 
of  filing  such  petition,  undergoing  imprisonment  as  speci- 

1  Wyeth  V.  Stone,  144  Mass.  441. 

The  next  of  kin  of  an  adopting  parent  who  but  for  his  adoption 
would  be  the  heirs  at  law,  may  petition  the  probate  court  to  annul  the 
decree  of  adoption  on  tlie  ground  of  fraud.  Tucker  v.  Fisk,  154  Mass. 
574;  Fiskeu.  Pratt,  157  Mass.  83. 

2  Even  though  the  wife  of  the  adopting  person  has  given  no  formal 
consent  to  the  adoption,  as  is  required  by  the  statutes  of  this  common- 
wealth. Ross  V.  Ross,  129  Mass.  243.  See  Foster  v.  Waterman,  124 
Mass.  592. 


ADOPTION   OF   CHILDREN   AND   CHANGE   OF   NAME.        485 

fied  in  section  three  or  that,  if  so  imprisoned,  he  has  since 
been  pardoned  on  the  ground  of  innocence  or  has  had  his 
sentence  reversed." 

["  Whoever  receives  an  infant  under  two  years  of  age 
for  adoption  or  for  giving  it  a  home,  or  for  procuring  a 
home  or  adoption  for  it,  shall,  before  receiving  the  same, 
ascertain  its  name,  age,  and  birthplace,  and  the  name  and 
residence  of  its  parent  or  parents,  and  shall  keep  a  record 
of  the  same  and  of  the  date  of  such  reception.  He  shall 
forthwith  upon  the  reception  of  said  infant  give  notice  in 
writing  thereof  to  the  state  board  of  charity,  and  upon 
request  of  said  board  shall  give  information  and  render 
the  reports  concerning  such  infant  required  by  it ;  and 
within  two  days  after  its  discharge  shall  give  notice  in 
writing  to  said  board  of  the  discharge  and  disposal  of  such 
infant.  Said  state  board  may  investigate  the  case,  and,  at 
any  time  previous  to  a  decree  of  adoption,  take  any  such 
infant  into  its  custody,  if  in  the  judgment  of  said  board 
the  public  interest  and  the  protection  of  the  infant  so 
require."]  ^ 

CHANGE   OF   NAMES. 

"  Sect.  12.  A  petition  for  the  change  of  name  of  a 
person  may  be  heard  by  the  probate  court  in  the  county  in 
which  the  petitioner  resides.  No  change  of  the  name  of  a 
person,  except  upon  the  adoption  of  a  child  under  the  pro- 
visions of  this  chapter  or  upon  the  marriage  or  divorce  of 
a  woman,  shall  be  lawful  unless  made  by  said  court  for  a 
suflficient  reason  consistent  with  the  public  interests  and 
satisfactory  to  it." 

"  Sect.  13.  The  court  shall,  before  decreeing  a  change 
of  name,  require  public  notice  of  the  petition  to  be  given, 

1  R.  L.  c.  83,  §  11. 


486       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

and  any  person  may  be  heard  thereon.  It  shall  also 
require  public  notice  to  be  given  of  the  change  decreed, 
and  on  return  of  proof  thereof  may  grant  a  certificate, 
under  the  seal  of  the  court,  of  the  name  which  the  per- 
son is  to  bear,  and  which  shall  thereafter  be  his  legal 
name." 

"  Sect.  14.  Each  register  of  probate  shall  annually  in 
the  month  of  December  make  a  return  to  the  secretary  of 
the  commonwealth  of  all  changes  of  names  made  in  the 
court  of  which  he  is  register." 

The  secretary  of  the  commonwealth  shall  at  the  close 
of  each  session  of  the  general  court  collate  and  cause 
to  be  printed  in  one  volume  a  list  of  the  changes  of 
names  returned  during  the  preceding  year  by  the  probate 
courts.^ 

The  secretary  of  tlie  commonwealth  was  required  by 
acts  of  1884,  c.  249,  to  collate  and  cause  to  be  printed 
in  one  volume  all  the  special  acts  of  this  commonwealth 
heretofore  passed  authorizing  changes  of  names  of  per- 
sons, and  all  the  returns  of  changes  of  names  hereto- 
fore published  by  virtue  of  the  fourteenth  section  of  the 
one  hundred  and  tenth  chapter  of  the  General  Statutes 
and  the  first  section  of  the  fourth  chapter  of  the  Public 
Statutes. 

A  child  shall  not  be  indentured,  adopted,  or  placed  in 
charge  of  any  person  from  a  state  institution  until  notice 
of  the  application  therefor  has  been  given  to  the  state 
board  of  charity,  and  until  its  report  in  writing,  made  after 
investigation  into  the  propriety  thereof,  has  been  filed 
with  such  institution.  All  applications  for  the  i^elease  or 
discharge  of  any  children  so  indentured  or  placed  in 
charge  shall  in  like  manner  be  given  to  the  state  board 
1  R.  L.  c.  9,  §  1. 


ADOPTION   OF   CHILDREN   AND   CHANGE   OF   NAME.        48'< 

for  its  report.  The  state  board  of  charity  shall  seek  out 
suitable  persons  who  are  willing  to  adopt,  take  charge  of, 
educate,  and  maintain  children  arrested  for  offences,  com- 
mitted to  a  state  institution,  abandoned  or  neglected,  and 
give  notice  thereof  to  the  institutions,  boards,  officers  or 
persons  having  authority  so  to  dispose  of  said  children.^ 

1  K.  L.  c.  86,  §§  52,  53. 


CHAPTER   XXIII. 

MISCELLANEOUS  PROVISIONS. 

SESSIONS   OF   THE    PROBATE    COURTS. 

Probate  courts  shall  be  held  in  each  year  at  the 
times  and  within  the  cities  and  towns  hereinafter  men- 
tioned, in  such  places  therein  as  the  several  judges 
shall  from  time  to  time  appoint.  Sufificient  notice  of 
such  appointments  shall  be  given  by  the  judges,  as  often 
as  changes  take  place,  by  advertisement  in  a  newspaper 
or  by  posting  the  notice  in  public  places : 

For  the  county  of  Barnstable,  at  Barnstable,  on  the 
second  Tuesday  of  January,  February,  March,  May, 
June,  July,  August,  September,  November,  and  Decem- 
ber, and  on  the  first  Tuesday  of  April  and  October. 

For  the  county  of  Berksliire,  at  Pittsfield,  on  the  first 
Tuesday  of  Jaimary,  February,  March,  April,  May,  June, 
September,  October,  and  December,  on  the  third  Tuesday 
of  July,  and  on  the  Wednesday  next  after  the  first  Monday 
of  November ;  at  Lee,  on  the  Wednesday  next  after  the 
first  Tuesday  of  January,  April,  and  October,  and  on 
the  Wednesday  next  after  the  third  Tuesday  of  July ;  at 
Adams,  on  the  Thursday  next  after  the  first  Tuesday  of 
January  and  October,  on  the  Wednesday  next  after  the 
first  Tuesday  of  March,  and  on  the  Thursday  next  after 
the  third  Tuesday  of  July  ;  and  at  Great  Barrington,  on  the 
Wednesday  next  after  the  first  Tuesday  of  February,  May, 
September,  and  December. 


MISCELLANEOUS   PROVISIONS.  489 

For  the  county  of  Bristol,  at  Fall  River,  on  the  first  Fri- 
day of  January,  April,  July,  and  October,  on  the  third  Friday 
of  February,  May,  and  November,  and  on  the  second  Fri- 
day of  September ;  at  New  Bedford  on  the  first  Friday  of 
February,  May,  August,  and  November,  and  on  the  third 
Friday  of  March,  June,  and  September ;  and  at  Taunton,  on 
the  first  Friday  of  March,  June,  September,  and  December, 
and  on  the  third  Friday  of  January,  April,  October,  and 
December. 

For  the  county  of  Dukes  County,  at  Edgartown,  on  the 
third  Monday  of  January  and  July,  and  on  the  first  Mon- 
day of  March  and  December ;  at  Vineyard  Haven,  on  the 
third  Monday  of  April,  and  on  the  first  Monday  of  Septem- 
ber ;  and  at  West  Tisbury,  on  the  first  Monday  of  June, 
and  on  the  third  Monday  of  October. 

For  the  county  of  Essex,  at  Salem,  on  the  first  Monday 
of  each  month  and  on  the  third  Monday  of  each  month 
except  August ;  at  Lawrence,  on  the  second  Monday  of 
January,  March,  May,  June,  July,  September,  and  Novem- 
ber ;  at  Haverhill,  on  the  second  Monday  of  April  and 
October ;  at  Newburyport,  on  the  fourth  Monday  of  Janu- 
ary, March,  May,  June,  July,  September,  and  November ; 
and  at  Gloucester,  on  the  fourth  Monday  of  April  and 
October. 

For  the  county  of  Franklin,  at  Greenfield,  on  the  first 
Tuesday  of  each  month  except  November,  and  on  the 
third  Tuesday  of  February,  March,  and  December;  at 
Orange,  on  the  third  Tuesday  of  January,  April,  July,  and 
October ;  at  Shelburne  Falls,  on  the  third  Tuesday  of  May 
and  November ;  at  Northfield,  on  the  third  Tuesday  of 
September  ;  and  at  Conway,  on  the  third  Tuesday  of  June. 

For  the  county  of  Hampden,  at  Springfield,  on  the  first 
Wednesday  of  each  month   except  August;   at  Holyoke, 


490       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

on  the  third  Wednesday  of  January,  March,  June,  and 
October;  at  Pahner,  on  the  second  Wednesday  of  Feb- 
ruary, May,  and  September,  and  the  fourth  Wednesday  of 
November ;  and  at  Westfield,  on  the  third  Wednesday  of 
February,  May,  September,  and  December. 

For  the  county  of  Hampsliire,  at  Northampton,  on  the 
first  Tuesday  of  each  month ;  at  Amherst,  on  the  second 
Tuesday  of  January,  Marcli,  June,  August,  and  Novem- 
ber ;  at  Belchertown,  on  the  second  Tuesday  of  May  and 
October  ;  at  Williamsburg,  on  the  third  Tuesday  of  May 
and  October ;  and  at  Ware,  on  the  second  Tuesday  of 
February,  September,  and  December,  and  on  the  third 
Tuesday  of  June. 

For  the  county  of  Middlesex,  at  Cambridge,  on  the  first, 
second,  and  fourth  Tuesday  of  each  month,  except  August, 
and  at  Lowell,  on  the  third  Tuesday  of  each  month,  except 
August. 

For  the  county  of  Nantucket,  at  Nantucket,  on  the 
Thursday  next  after  the  second  Tuesday  of  each  month. 

For  the  county  of  Norfolk,  at  Dedham,  on  the  first  and 
third  Wednesday,  at  Quincy,  on  the  second  Wednesday, 
and  at  Brookline,  on  the  fourth  Wednesday  of  each  month 
except  August.  The  county  commissioners  of  the  county 
of  Norfolk  may  provide,  furnish,  and  maintain  suitable 
rooms  and  accommodations  in  the  city  of  Boston  for  the 
use  of  the  probate  court  for  the  county  of  Norfolk,  for 
the  hearing  and  trial  of  such  contested  cases  in  said  court 
as  the  parties  thereto  or  their  counsel  may  desire  to  have 
heard  and  tried  in  the  city  of  Boston. 

For  the  county  of  Plymouth,  at  Plymouth,  on  the 
second  Monday  of  each  month  except  August,  and  at 
Brockton,  on  the  fourth  Monday  of  each  month  except 
July. 


MISCELLANEOUS    PROVISIONS.  491 

For  the  county  of  Suffolk,  at  Boston,  on  each  Thursday 
except  the  first,  second,  fourth,  and  fifth  Thursdays  of 
August. 

For  the  county  of  Worcester,  at  Worcester,  on  the  first, 
second,  third,  and  fifth  Tuesday  of  each  montli  except 
August;  at  Fitchburg,  on  the  fourth  Tuesday  of  each 
month  except  August.^ 

MISCELLANEOUS   PROVISIONS  CONCERNING  JUDGES  OF  PROBATE. 

In  each  county,  except  Suffolk  and  Nantucket,  the  judge 
and  register  of  the  probate  court,  and  the  clerk  of  the 
courts,  shall  be  a  board  of  examiners  ;  and  if  two  of  said 
offices  are  held  by  the  said  person  in  any  county,  the 
sheriff  shall  be  a  member  of  the  board.^ 

Judges  of  probate  may,  in  case  of  a  disagreement,  deter- 
mine the  amount  to  be  paid  to  a  town  of  less  than  ten 
thousand  inhabitants  by  the  trustees  or  managers  of  an 
institution  containing  more  than  six  inmates  for  the  tui- 
tion in  the  public  schools  of  a  child  between  the  ages  of 
five  and  fifteen  years,  not  theretofore  resident  in  the  town, 
and  who  is  an  inmate  of  such  institution.^ 

Juvenile  Offenders. 

Boys  under  fifteen  years  of  age  may  be  commi4]ted  to  the 
Lyman  school  by  police,  district,  and  municipal  courts  and 
trial  justices,  and,  except  in  the  county  of  Suffolk,  by 
judges  of  probate.  Girls  under  seventeen  years  of  age 
may  be  committed  to  the  industrial  school  by  said  courts, 
judges,  and  justices,  except  as  aforesaid,  and,  except  in  the 
county  of  Suffolk,  by  commissioners,  appointed  as  provided 
in  chapter  86,  section  13,  of  the  Revised  Laws. 

1  R.  L.  c.  162,  §  60.        2  R.  L.  c.  11,  §  254.        «  R.  L.  c.  44,  §  4. 


492       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

Judges  of  probate,  except  in  the  county  of  Suffolk,  may 
receive  complaints,  issue  warrants,  and  hear  cases  against 
juvenile  offenders  at  such  times  or  places,  in  or  out  of  their 
respective  counties,  as  convenience  may  require.  Tlie 
judge  of  probate  may  act  in  such  case  for  the  judge  of  any 
other  county,  whether  absent  or  not,  if  so  requested.^ 

Judges  of  probate  also  have  jurisdiction  of  complaints  by 
parents,  guardians,  selectmen,  or  overseers  of  the  poor  for 
misconduct  or  neglect  of  the  master,  and  by  the  master 
for  gross  misbehavior  of  one  bound  as  an  apprentice  or 
servant.^ 

Registered  Land. 

The  provisions  of  chapter  128  of  the  Revised  Laws  do 
not  in  any  way  affect  or  impair  the  jurisdiction  of  the 
probate  court  to  license  an  executor  or  administrator  or 
guardian  to  sell  or  mortgage  registered  land  for  any  pur- 
pose for  which  a  license  may  be  granted  in  the  case  of 
unregistered  land.  The  purchaser  or  mortgagee  who  takes 
a  deed  which  is  executed  in  pursuance  of  such  license  shall 
be  entitled  to  a  new  certificate  of  title,  or  memorandum  of 
registration.^ 

Commitment  of  Insane  Persons  and  Inebriates. 

A  judge  of  the  probate  court  may,  within  his  county, 
commit  to  an  insane  hospital  any  insane  person  then  resid- 
ing or  being  in  said  county,  v/ho,  in  his  opinion,  is  a  proper 
subject  for  its  treatment  or  custody.*  Such  judge  may  also 
commit  to  the  Massachusetts  hospital  for  dipsomaniacs  and 
inebriates  any  male,  or  to  a  state  insane  hospital  any  male 

1  R.  L.  c.  86,  §§  10,  12.  2  R.  L.  c.  155,  §  11. 

8  R.  L.  c.  128,  §  92.  ••  R.  L.  c.  87,  §  33. 


MISCELLANEOUS   PEOVISIONS.  493 

or  female,  who  is  addicted  or  subject  to  dipsomania  or  in- 
ebriety either  in  public  or  private.^ 

Appointment  of  Probate  Court  Officers. 

The  judges  of  probate  for  the  county  of  Suffolk  shall 
appoint  an  officer  to  attend  the  sessions  of  the  probate 
court  and  court  of  insolvency,  and  may  at  any  time,  for  a 
cause  which  they  consider  sufficient,  remove  him,  and  may 
fill  any  vacancy  caused  by  removal  or  otherwise.  Such 
officer  shall  give  bond  in  the  sum  of  one  thousand  dollars 
for  the  faithful  performance  of  his  duties,  payable  to  the 
treasurer  of  the  county  of  Suffolk,  with  sufficient  sureties, 
who  shall  be  approved  by  a  judge  of  said  court.  Such 
officer  may  serve  the  orders,  precepts,  and  processes  issued 
by  said  courts  or  by  a  judge  thereof. 

In  addition  to  the  officers  whom  the  sheriff  of  the  county 
of  Middlesex  is  authorized  by  section  73  of  chapter  165  to 
appoint,  he  may  appoint,  subject  to  the  approval  of  the 
judges  of  probate  and  insolvency  for  said  county,  an  officer 
who  shall  serve  as  a  permanent  court  officer  for  attendance 
at  the  session  of  the  probate  court.  Such  officer  shall 
serve  the  orders,  precepts,  and  processes  issued  by  said 
probate  court  or  by  either  judge  thereof. 

The  judges  of  probate  and  insolvency  for  the  county  of 
Middlesex  may  appoint  a  messenger  for  the  courts  of  pro- 
bate and  insolvency  of  said  county,  may  at  any  time  remove 
him  for  a  cause  which  is  by  them  considered  sufficient,  and 
may  fill  a  vacancy  caused  by  a  removal  or  otherwise.  Said 
messenger  shall  wait  upon  said  courts  and  perform  such 
duties  as  the  judges  may  direct.^ 

1  R.  L.  c.  87,  §  59.  2  R.  L.  c.  164,  §§  33-35. 


494  PROCEEDINGS   IN   THE    PKOBATE    GOUKTS. 

{Revised  I^ws,  c.  172.] 

Actions  hy  and  against  Executors  and  Administrators. 

"  Sect.  1.  An  action  which  would  have  survived  if  com- 
menced by  or  against  the  original  party  in  his  lifetime 
may  be  commenced  and  prosecuted  by  or  against  his  ex- 
ecutor or  administrator."  ^ 

^  In  addition  to  the  actions  which  survive  by  the  common  law,  the 
following  also  survive :  actions  of  replevin,  tort  for  assault,  battery, 
imprisonment,  or  other  damage  to  the  person,  for  goods  taken  and  car- 
ried away  or  converted,  or  for  damage  to  real  or  personal  property, 
and  actions  against  sheriffs  for  the  misconduct  or  negligence  of  them- 
selves or  their  deputies.  R.  L.  c.  171,  §  1.  If  a  person  or  corpora- 
tion by  his  or  its  negligence,  or  by  the  gross  negligence  of  his  or  its 
agents  or  servants  while  engaged  in  his  or  its  business,  causes  the  death 
of  a  person  who  is  iu  the  exercise  of  due  care,  and  not  in  his  or  its  em- 
ployment or  service,  he  or  it  shall  be  liable  in  damages  in  the  sum  of 
not  less  than  five  hundred,  nor  more  than  five  thousand  dollars  to  be 
assessed  with  reference  to  the  degree  of  his  or  its  culpability  or  of  that 
of  his  or  its  agents  or  servants,  to  be  recovered  in  an  action  of  tort, 
commenced  within  one  year  after  the  injury  which  caused  the  death,  by 
the  executor  or  administrator  of  the  deceased,  one-half  thereof  for  the 
use  of  the  widow,  and  one-half  to  the  use  of  the  children  of  the  de- 
ceased ;  or,  if  there  are  no  children,  the  whole  to  the  use  of  the  widow  ; 
or,  if  there  is  no  widow,  the  whole  to  the  use  of  the  next  of  kin. 
R.  L.  c.  171,  §  2. 

For  the  provisions  of  law  as  to  recovery  of  damages  for  injury  re- 
sulting in  death  of  an  employee,  with  or  without  conscious  suffering, 
see  R.  L.  c.  106,  §§  71-78;  Cote  v.  Lawrence  Manuf.  Co.,  178  Mass. 
295.  These  sections  of  the  Revised  Laws  do  not  apply  to  injuries 
caused  to  domestic  servants  or  farm  laborers  by  fellow  employees.  R.  L. 
c.  106,  §  79. 

Actions  which  survive. 

For  conversion  of  title  deeds  during  lifetime.  Towle  v.  Lovet, 
6  Mass.  394.  Against  sheriff  for  default  of  deputy  in  not  returning 
execution.  Paine  v.  Ulmer,  7  Mass.  317.  For  assault  and  battery. 
Brown  v.  Kendall,  6  Cush.  292.  For  taking  land  by  eminent  domain. 
Moore  v.  Boston,  8  Cush.  274.  Against  city  for  highway  defect.  De- 
mond  V.  Boston,  7  Gray,  544.     For  injuries  causing  insensibility  and, 


ACTIONS   BY   AND   AGAINST   EXECUTORS,   ETC.  495 

"Sect.  2.   If  an  action  of  tort  is  commenced  or  prose- 
cuted against  the  executor  or  administrator  of  the  person 

shortly  afterwards,  death,  but  (except  where  action  is  brought  by 
widow  or  next  of  kin,  under  provisions  of  R.  L.  c.  106,  §  73,  on  ac- 
count of  injury  resulting  in  instantaneous  death  of  an  employee  or  in 
his  death  without  conscious  suffering,  or  by  the  legal  representatives 
under  provisions  of  R.  L.  c.  106,  §  72,  on  account  of  injury  resulting 
in  death  not  instantaneous  of  an  employee,  or  in  his  death  preceded 
by  conscious  suffering),  only  nominal  damages  can  be  recovered  in  tlic 
absence  of  conscious  suffering.  Bancroft  v.  Boston  &  Worcester  Rail- 
road Co.,  11  Allen,  34;  Mulchahey  v.  Washburn  Car  Wheel  Co.,  145 
Mass.  281.  Against  an  apothecary  for  negligently  selling  a  deadly 
poison.  Norton  v.  Sewall,  106  Mass.  143.  For  mill-owner's  obstruc- 
tion of  flowage  by  dam.  Brown  v.  Dean,  123  Mass.  254.  Against 
two  severally  liable,  and  also  against  two  jointly  liable,  if  one  dies. 
Colt  V.  Learned,  133  Mass.  409;  Tucker  v.  Utley,  168  Mass.  415.  For 
deceit  in  letting  infected  dwelling-house.  Cutter  v.  Hamlen,  147  Mass. 
471.  For  death  of  one  domiciled  in  Massachusetts  and  killed  in  a 
railroad  accident  in  Connecticut,  and  an  administrator  appointed  in 
Massachusetts  may  sue  there  to  recover  damages  under  a  Connecticut 
statute.  Higgins  v.  Central  New  England  &  Western  Railroad  Co., 
155  Mass.  176:  see  also  Mulliall  v.  YaUon,  176  Mass.  266,268.  By 
corporation  for  fraudulent  misconduct  of  its  deceased  president. 
Warren  v.  Para  Rubber  Shoe  Co.,  166  Mass.  97.  Against  officer  of 
a  corporation  for  misappropriation  of  corporate  property.  Wineburgh 
V.  United  States  Steam  &  Street  Railway  Advertising  Co.,  173  Mass. 
60.  For  injury  to  person  and  property  from  assault  by  dogs.  Wil- 
kins  V.  Wainwright,  173  Mass.  212.  For  redemption  of  land  from 
tax  sale.  Clark  '.'.  Lancy,  178  Mass.  400.  For  assault  on  account  of 
ejecting  in  an  improper  manner  an  obnoxious  passenger  from  a  street 
railway  car.  Hudson  v.  Lynn  &  Boston  Railroad,  178  Mass.  64.  In 
equity  to  rescind  and  set  aside  a  contract  procured  by  the  fraud  and 
undue  influence  of  defendant  by  reason  of  which  defendant's  mother 
conveyed  to  him  substantially  all  of  her  property.  Parker  v.  Simpson, 
180  Mass.  334,  343. 

Actions  which  do  not  survive. 
Against  assignee  of  a  bankrupt.  Hall  v.  Cushing,  8  Mass.  521. 
Against  deputy  for  negligent  levy.  Cravath  v.  Plympton,  13  Mass. 
453.  For  stockholder's  liability  for  corporate  debts.  Child  v.  Coffin, 
17  Mass.  64;  Ripley  v.  Sampson,  10  Pick.  371;  Dane  v.  Dane  Manuf. 
Co.,  14  Gray,  488;  Bacon  v.  Pomeroy,  104  Mass.  577.     (For  history 


496       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

originally  liable,  the  plaintiff  shall  be  entitled  to  recover 
only  for  the  value  of  the  goods  taken,  or  for  the  damage 
actually  sustained,  without  vindictive  or  exemplary  dam- 
ages, or  damages  for  any  alleged  outrage  to  the  feelings  of 
the  injured  party." 

"  Sect.  3.  If  the  executor  or  administrator  of  a  trustee, 
carrier,  depositary,  or  other  person  who  claimed  only  a 
special  property  in  goods  which  he  held  for  the  use  and 
benefit  of  another  recovers  such  goods,  or  damages  for  the 

of  the  law  relative  to  liability  of  stockholders  in  Massachusetts  corpor- 
ations, see  Child  v.  Boston  &  Fairhaveu  Iron  Works,  137  Mass.  516, 
517.)  For  breach  of  promise  when  no  special  damage  is  shown,  or 
where  averment  of  special  damage  is  insufficient.    Stebbins  v.  Palmer, 

1  Pick.  71 ;  Smith  r.  Sherman,  4  Cush.  408;  Chase  v.  Fitz,  132  Mass. 
359.     Of  debt  for  cutting  and  carrying  off  trees.     Little  v.  Conant, 

2  Pick.  527.  For  diverting  water-course.  Holmes  v.  Moore,  5  Pick. 
257-  For  fraudulent  recommendation  of  trader.  Read  v.  Hatch,  19 
Pick.  47.  For  libel,  even  though  causing  loss  of  a  valuable  office. 
Walters  v.  Nettleton,  5  Cush.  544  ;  Cummings  v.  Bird.  115  Mass.  346. 
For  malicious  prosecution.  Nettleton  v.  Dinehart,  5  Cush.  543;  Couly 
V.  Conly,  121  Mass.  550.  For  deceit  in  sale  of  poisoned  grain.  Cutting 
V.  Tower,  14  Gray,  183.  For  fraud  in  getting  verdict  set  aside.  Leggate  v. 
Moulton,  115  Mass.  552.  For  fraudulent  representations,  inducing  dis- 
posal of  land.  Leggate  v.  INloulton,  supra.  For  injuries  causing  instant 
death,  (except  when  action  is  brought  under  Employers'  Liability  Act, 
now  R.  L.  c.  106,  §§  71-79).  Moran  v.  Hollings,  125  Mass.  93.  Against 
railroad  company  for  injury  to  brakeman  falling  from  train,  if  evi- 
dence fails  to  show  how  he  fell,  what  he  was  doing,  whether  death  was 
instantaneous,  or  whether  there  was  conscious  suffering.  Corcoran  v. 
Boston  &  Albany  Railroad  Co.,  133  Mass.  507;  Murphy  v.  Same,  167 
Mass.  64.  In  equity  for  false  representations  of  a  trustee,  unless  his 
personal  representatives  received  an  estate  benefited  by  his  fraud,  or 
unless  he  held  a  fiduciary  relation  to  the  person  defrauded.  Houghton 
V.  Butler,  166  Mass.  547.  For  enforcing  the  agreement  of  a  deceased 
person  to  manage  the  business  of  manufacturing  a  patented  article 
and  to  advance  all  funds  requisite,  but  to  look  to  the  business  for 
repayment.     Marvel  v.  Phillips,  162  Mass.  399. 

An  administrator  cannot,  on  death  of  his  intestate,  be  made  a  party 
to  a  petition  for  partition.     Richards  v.  Richards,  136  Mass.  126. 


ACTIONS   AGAINST   EXECUTORS,   ETC.  497 

taking  or  detention  thereof,  in  an  action  of  replevin  or 
tort,  the  goods  or  money  recovered  shall  not  be  assets  in 
his  hands,  but  shall,  after  deducting  the  costs  and  expenses 
of  the  action,  be  paid  over  and  delivered  to  the  person  for 
whose  use  and  benefit  they  were  so  held  or  claimed  by  the 
deceased  person." 

"  Sect.  4.  If  judgment  for  a  return  in  an  action  of 
replevin  is  rendered  against  an  executor  or  administrator, 
the  property  returned  by  him  shall  not  be  assets  in  his 
hands ;  and  if  it  has  been  included  in  the  inventory,  the 
executor  or  administrator  shall  be  allowed  therefor  in 
his  account  if  he  shows  that  it  has  been  returned  in  pur- 
suance of  such  judgment." 

"  Sect.  5.  Writs  of  attachments  and  executions  against 
executors  or  administrators  for  debts  due  from  the  de- 
ceased testator  or  intestate  shall  run  only  against  the 
goods  and  estate  of  the  deceased  in  their  hands,  and  not 
against  their  bodies,  goods,  or  estate. "  ^ 

"  Sect.  6.  If  a  judgment  for  costs  is  rendered  against  an 
executor  or  administrator  in  an  action  commenced  by  or 
against  him  or  in  an  action  commenced  by  or  against  the 
testator  or  intestate,  wherein  the  executor  or  administrator 
has  appeared  and  taken  upon  himself  the  prosecution  or 
defence,  he  shall  be  personally  liable  for  the  costs,  and 
the  execution  shall  be  awarded  against  his  body,  goods, 
and  estate,  as  if  it  were  for  his  own  debt.  Costs  paid  by 
him  sball  be  allowed  in  his  account  unless  the  probate 
court  determines  that  the  action  was  prosecuted  or  de- 
fended without  reasonable  cause."  ^ 

1  Cooke  V.  Gibbs,  3  Mass.  193;  Dana  v.  Wentworth,  111  Mass.  291; 
Harmon  v.  Osgood,  151  Mass.  501. 

2  Look  V.  Luce,  136  Mass.  249,  140  Mass.  461;  Perkins  v.  Fellows, 
136  Mass.  294. 

32 


498       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Sect.  7.  If  the  judgment  is  for  debt  or  damages  and 
costs,  an  execution  for  tlie  debt  or  damages  shall  be 
awarded  against  the  goods  and  estate  of  the  deceased  in 
the  hands  of  the  executor  or  administrator,  and  another 
execution  for  the  costs  against  the  goods,  estate,  and  body 
of  the  executor  or  administrator,  as  if  it  were  for  his  own 
debt."  1 

"  Sect.  8.  Upon  the  return  unsatisfied  of  an  execution 
against  an  executor  or  administrator  for  a  debt  due  from 
the  estate  of  the  deceased,  the  court  may,  upon  a  sugges- 
tion by  the  creditor  of  waste,  issue  a  writ  of  scire  facias 
against  the  executor  or  administrator.  If  the  defendant 
does  not  appear  and  show  sufficient  cause  to  the  contrary, 
he  shall  be  found  guilty  of  waste  and  shall  be  personally 
liable  for  the  amount  thereof,  if  it  can  be  ascertained, 
otherwise  for  the  amount  due  on  the  original  judgment, 
with  interest  from  the  time  when  it  was  rendered,  and 
judgment  and  execution  shall  be  awarded  as  for  his  own 
debt."  2 

"  Sect.  9.  If  an  executor  or  administrator  dies  or  is 
removed  from  office  during  the  pendency  of  an  action  to 
which  he  is  a  party,  the  suit  may  be  prosecuted  by  or 
against  the  administrator  de  boriis  non  in  like  manner  as 
if  commenced  by  or  against  such  last  administrator ;  ^  and 
the  provisions  of  the  preceding  chapter  relative  to  the 
appearance  or  citation  of  an  administrator  and  relative 
to  a  non-suit  or  default  shall  apply  to  such  administrator 
de  bonis  non." 

1  Yarrington  v.  Robinson,  141  Mass.  450  ;  Gibbs  v.  Taylor,  143 
Mass.  187;  McKira  v.  Haley,  173  Mass.  112. 

2  Shillaber  v.  Wyman,  15  Mass.  322 ;  Jenkins  v.  Wood,  134  Mass. 
117,  140  Mass.  66,  144  Mass.  238 ;  Fuller  ».  Connelly,  142  Mass.  230. 

'  Brown  v.  Pendergast,  7  Allen,  427. 


ACTIONS   AGAINST   EXECUTORS,   ETC.  499 

"  Sect.  10.  If  an  executor  or  administrator  dies  or  is 
removed  after  judgment  has  been  rendered  either  for  or 
against  him,  the  court  may  issue  a  writ  of  scire  facias  in 
favor  of  or  against  the  administrator  de  bonis  no7i,  and  a 
new  execution  may  be  issued  in  like  manner  as  it  may  be 
done  in  favor  of  or  against  an  original  executor  or  admin- 
istrator, in  case  of  the  death  of  his  testator  or  intestate 
after  a  judgment  rendered  for  or  against  him  ;  except 
that  a  judgment  against  the  first  executor  or  administra- 
tor for  costs  for  which  he  was  personally  liable  shall  be 
enforced  only  against  his  executor  or  administrator  and 
not  against  the  administrator  de  bonis  nonr 

"  Sect,  11.  If  a  judgment  is  rendered  for  or  against 
an  executor  or  administrator,  a  writ  of  error  may  be 
brought  thereon  by  or  against  an  administrator  de  bonis 
non  in  like  manner  as  it  might  have  been  brought  by  or 
against  the  executor  or  administrator  who  was  party  to 
the  judgment."  ^ 

[Revised  Laws,  c.  189] 

Trustee  Process  against  Executors  and  Administrators. 

"  Sect.  20.  Debts,  legacies,  goods,  effects,  or  credits  due 
from  or  in  the  hands  of  an  executor  or  administrator  as 
such,  may  be  attached  in  his  hands  by  the  trustee  process."  ^ 

1  Brown  v.  Pendergast,  7  Allen,  427. 

2  Holbrook  V.  Waters,  19  Pick.  354;  Wheeler  v.  Bowen,  20  Pick. 
563;  Hoar  v.  Marshall,  2  Gray,  251  ;  Boston  Bank  v.  Miuot,  3  Met. 
507;  Cady  v.  Comey,  10  Met.  459  ;  Davis  v.  Davis,  2  Cush.  Ill;  Stills 
V.  Harmon,  7  Cush.  406;  Carson  v.  Carson,  6  Allen,  397;  Vantine  v. 
Morse,  104  Mass.  275 ;  Nickerson  v.  Chase,  122  Mass.  296  ;  Capen  v. 
Duggan,  136  Mass.  501  ;  Allen  v.  Edwards,  136  Mass.  138;  Emery  v. 
Bidwell,  140  Mass.  271 ;  Mechanics'  Savings  Bank  i-.  Waite,  150  Mass. 
234 ;  Harmon  i'.  Osgood,  151  Mass.  501. 


500       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Sect.  50.  If  a  person  who  is  summoned  as  trustee  in  his 
own  right  dies  before  the  judgment  recovered  by  the  plain- 
tiff has  been  fully  satisfied,  the  goods,  effects,  and  credits  in 
his  hands  at  the  time  of  the  attachment  shall  remain  bound 
thereby,  and  his  executor  or  administrator  shall  be  liable 
therefor  as  if  the  writ  had  been  originally  served  on  him." 

"  Sect.  51.  If  a  person  who  is  so  summoned  dies  before 
judgment  in  the  original  action,  his  executor  or  adminis- 
trator may  appear  voluntarily,  or  may  be  cited  to  appear 
as  in  other  cases.  The  further  proceedings  shall  then  be 
conducted  in  the  same  manner  as  if  the  executor  or  admin- 
istrator had  been  originally  summoned  as  a  trustee,  except 
that  the  examination  of  the  deceased,  if  any  has  been  filed, 
shall  have  the  same  effect  as  if  he  was  living." 

"  Sect.  52.  If  the  executor  or  administrator  does  not 
appear,  the  plaintiff,  instead  of  suggesting  the  death  of 
the  trustee,  may  take  judgment  against  him  by  default 
or  otherwise  as  if  he  were  living,  and  the  executor  or 
administrator  shall  pay  upon  the  execution  the  amount 
which  the  deceased  would  have  been  liable  to  pay  to  the 
defendant,  and  shall  be  thereby  discharged  for  the  amount 
so  paid.  If  he  does  not  voluntarily  pay  the  amount  in  his 
hands,  the  plaintiff  may  proceed  against  him  by  a  writ  of 
scire  faciasy  ^ 

"  Sect.  53.  If  a  person  who  is  summoned  as  trustee  dies 
after  judgment  in  the  original  action,  his  executor  or 
administrator  may  pay  upon  the  execution  the  amount 
which  the  deceased  would  have  been  liable  to  pay  were  he 
living,  and  he  shall  be  discharged  from  all  further  demands 
on  account  thereof  in  the  manner  before  mentioned.  If 
he  refuses  to  make  such  payment,  the  plaintiff  may  proceed 
against  him  by  a  writ  of  scire  facias.^' 

1  Guptill  V.  Ayer,  149  Mass.  51. 


MISCELLANEOUS   PROVISIONS.  501 

"  Sect.  54.  If  a  person,  against  whom  as  trustee  execu- 
tion issues,  is  not  living  at  the  expiration  of  thirty  days 
after  final  judgment  in  the  trustee  process,  a  demand, 
for  the  purpose  of  holding  the  attachment,  may  be  made 
upon  the  executor  or  administrator  of  such  deceased  per- 
son at  any  time  within  thirty  days  after  his  appointment, 
and  shall  have  the  same  effect  as  if  made  within  thirty 
days  after  the  judgment." 

"  Sect.  55.  If  an  executor  or  administrator  as  such  is 
adjudged  a  trustee,  the  execution  shall  not  be  served  on 
his  own  goods  or  estate  nor  on  his  person,  and  he  shall 
be  liable  for  the  amount  in  his  hands  only  in  like  manner 
and  to  the  same  extent  as  he  would  have  been  liable  to  the 
defendant  if  there  had  been  no  trustee  process." 

"  Sect.  56.  If,  after  final  judgment  against  an  executor 
or  administrator  for  a  sum  certain  due  from  him  as  trustee, 
he  neglects  to  pay  the  same,  the  original  plaintiff  in  the 
trustee  process  shall  have  the  same  remedy  for  recovering 
the  amount,  either  upon  a  suggestion  of  waste  or  by  a 
suit  on  the  administration  bond,  as  the  defendant  in  the 
trustee  process  would  have  had  upon  a  judgment  recovered 
by  himself  for  the  same  demand  against  the  executor  or 
administrator." 

Annual  Returns  of  Shares  in  Corporations  hy  Guardians. 

A  guardian  who  holds,  or  whose  ward  holds,  shares 
of  stock  in  any  corporation,  including  banks  located  in 
the  commonwealth  liable  to  taxation,  and  an  executor, 
administrator,  trustee,  or  other  person  who  holds  in  trust 
any  such  stock,  shall  annually,  between  the  first  and  tenth 
day  of  May,  return  under  oath  to  said  commissioner  the 
names  and  residences,  on  the  first  day  of  that  month,  of 
themselves  and  of   all  such  wards  or   other   persons   to 


502       PROCEEDINGS  IN  THE  PEOBATE  COURTS. 

whom  any  portion  of  the  income  from  such  stock  is  pay- 
able, the  number  of  shares  of  stock  so  held,  and  the  name 
and  location  of  the  corporation.^ 

Rights  of  Executors  to  Vote  at  Corporation  Meetings. 

An  executor,  administrator,  guardian,  conservator,  or 
trustee  shall  represent  the  shares  of  his  trust  at  all  meet- 
ings of  the  corporation,  and  may  vote  as  a  stockholder.^ 

Liability  of  Executors  for  Corporation  Stock. 

The  estates  and  funds  in  the  hands  of  executors,  admin- 
istrators, guardians,  conservators,  or  trustees  shall  be 
liable  to  no  greater  extent  than  the  testator,  intestate, 
ward,  or  person  interested  in  the  trust  fund  would  have 
been,  if  living  and  competent  to  act  and  hold  stock  in 
his  own  name.^ 

Right  of  Trustees  or  Guardians  to  release  Damages  for  Land 
taken  hy  Railway  Companies. 

When  the  lands  or  other  property  of  a  person  under 
guardianship,  or  lands  held  in  trust,  are  taken  for  the  use  of 
a  railroad,  the  guardian  or  trustee  may  release  all  damages, 
in  like  manner  as  if  the  same  were  held  in  his  own  right.* 

EMBEZZLEMENT   BY   TRUSTEES,    ETC. 

A  trustee  under  an  express  trust  created  by  a  deed,  will, 
or  other  instrument  in  writing,  or  a  guardian,  executor, 
or  administrator,  or  any  person  upon  or  to  whom  such  a 

1  R.  L.  c.  14,  §  8.  2  R.  L.  c.  109,  §  17. 

3  R.  L.  c.  110,  §  64.  As  to  liability  of  stockholders  of  trust  com- 
panies and  of  naortgage  loan  and  investment  companies,  see  R.  L. 
c.  116,  §30;  C.117,  §  11. 

4  R.  L.  c.  Ill,  §  110. 


MISCELLANEOUS    PROVISIONS.  503 

trust  has  devolved  or  come,  who  embezzles  or  fraudulently 
converts  or  appropriates  money,  goods,  or  property  held  or 
possessed  by  him  for  the  use  or  benefit,  either  wholly  or 
partially,  of  some  other  person  or  for  a  public  or  chari- 
table purpose,  to  or  for  his  own  use  or  benefit  or  the  use  or 
benefit  of  any  person  other  than  such  person  as  aforesaid, 
or  for  any  purpose  other  than  such  public  or  charitable 
purpose  as  aforesaid,  or  who  otherwise  fraudulently  dis- 
poses of  or  desti-oys  such  property,  shall  be  guilty  of  lar- 
cency,  and  shall  be  punished  by  imprisonment  in  the  state 
prison  for  not  more  than  ten  years  or  by  a  fine  of  not  more 
than  two  thousand  dollars  and  imprisonment  in  jail  for  not 
more  than  two  years.^ 

Privileges  and  Discharge  of  Persons  committed  to 
Insane  Hospitals. 

An  attorney  at  law,  regularly  retained  by  or  on  behalf 
of  any  person  committed  to  an  insane  hospital,  asylum,  or 
receptacle  for  the  insane,  shall  be  admitted  to  visit  his 
client  at  all  reasonable  times,  if,  in  the  opinion  of  the 
superintending  oflBcer  of  such  hospital,  asylum,  or  recep- 
tacle, such  visit  would  not  be  injurious  to  such  person,  or 
if  a  justice  of  the  supreme  judicial  court,  or  of  the  superior 
court,  or  a  judge  of  probate  in  any  county  first  orders  in 
writing  that  such  visits  be  allowed. 

Two  of  the  trustees  of  a  state  insane  hospital,  on  appli- 
cation in  writing  or  of  their  own  motion,  or  a  justice 
of  the  supreme  judicial  court  in  any  county,  or  the  judge  of 
probate  for  the  county  in  which  the  hospital  is  situated 
or  in  which  the  patient  had  his  residence  at  the  time  of  his 
commitment  or  admission,  on  such  application,  and  after 
such  notice  as  the  said  trustees  or  judge  may  consider 
1  R.  L.  c.  208,  §  48. 


504       PKOCEEDINGS  IN  THE  PROBATE  COURTS. 

reasonable  and  proper,  may  discharge  any  person  confined 
therein,  if  it  appears  that  he  is  not  insane,  or  if  insane, 
will  be  sufficiently  provided  for  by  himself,  his  guardian, 
relatives,  or  friends,  or  by  the  city  or  town  liable  for  his 
support,  or  that  his  confinemcut  therein  is  not  longer  neces- 
sary for  the  safety  of  the  public  or  his  own  welfare.^ 

Special  Trust  Funds  for  Parks,  Cemeteries,  etc. 

Any  savings  bank  or  institution  for  savings  may  receive 
on  deposit  to  any  amount  funds  in  trust  for  the  purpose 
of  setting  out  shade-trees  in  streets  and  parks,  and  improv- 
ing the  same ;  for  purchasing  land  for  parks,  and  improv- 
ing the  same ;  for  maintaining  cemeteries  or  cemetery 
lots ;  or  for  erecting  and  maintaining  drinking  fountains 
in  public  places.  Such  funds  shall  be  placed  on  interest 
in  such  corporation,  and  the  interest  and  dividends  arising 
therefrom  shall  be  paid  semi-annually  to  such  city,  town, 
or  cemetery  authorities  as  may  be  designated  by  the  donors 
of  said  funds,  or  by  the  will  of  the  person  bequeathing  the 
same,  and  shall  be  expended  by  such  authorities  within 
their  respective  cities,  towns,  or  cemeteries  for  any  or  all 
of  said  purposes  as  may  be  specified  by  such  donors  or 
such  will.  No  part  of  the  principal  of  such  funds  shall  be 
withdrawn  or  expended,  and  the  same  shall  be  exempt 
from  attachment  or  levy  on  execution, 

A  judge  of  probate,  after  notice  and  a  hearing,  may 
authorize  an  executor,  administrator,  or  trustee  holding 
money  or  other  personal  property  for  any  of  the  purposes 
above  mentioned,  to  deposit  such  moneys  or  the  avails 
arising  from  such  personal  property,  in  any  such  corpora- 
tion designated  by  the  judge,  to  be  held  by  it  in  the  manner 
and  for  the  uses  and  purposes  above  mentioned,  and  upon 

1  Pub.  Stats,  c.  87,  §§  82,  91. 


MISCELLANEOUS   PROVISIONS.  505 

the  trusts  upon  which  said  executor,  administrator,  or 
trustee  held  the  same ;  and  upon  the  deposit  of  such  money 
and  its  receipt  and  acceptance  by  such  corporation,  the 
executor,  administrator,  or  trustee  shall  be  discharged 
from  further  care  and  responsibility  therefor.^ 

Fees  of  Witnesses  in  Probate  Courts. 

The  fees  for  attending  as  a  witness  in  a  civil  case  in  the 
probate  court  or  court  of  insolvency,  or  to  persons,  except 
the  debtor,  who  are  examined  under  the  provisions  of 
section  82  of  chapter  163  of  the  Revised  Laws  as  to 
the  dealings  and  property  of  an  insolvent  debtor,  unless 
fraudulent  conduct  is  charged  and  proved  against  them, 
are  one  dollar  and  fifty  cents  a  day ;  for  attendance  in  a 
criminal  case,  one  dollar  and  twenty-five  cents  a  day  ; 
for  attending  on  any  other  occasion  for  which  no  express 
provision  is  made,  fifty  cents  a  day  ;  and  in  all  cases  five 
cents  a  mile  for  travel  out  and  home.  Each  witness  must 
certify  in  writing  the  amount  of  his  travel  and  attendance.^ 

1  R.  L.  c.  113,  §§  42,  43;  Gates  v.  White,  139  Mass.  353;  Abbott  v. 
Cottage  City,  143  Mass.  525;  Green  v.  Hogan,  153  Ma.ss.  462;  Bartlett, 
Petitioner,  163  Mass.  507,  513;  Morse  v.  Natick,  176  Mass.  510,  513. 

2  R.  L.  c.  204,  §  21. 


CHAPTER  XXIV. 

TAXATION  OF    COLLATERAL    LEGACIES    AND  SUCCESSIONS. 
[Revised  Laws,  c.  15.] 

"  Sect.  1.  All  property  within  the  jurisdiction  of  the 
commonwealth,  corporeal  or  incorporeal,  and  any  interest 
therein,  whether  belonging  to  inhabitants  of  the  common- 
wealth or  not,  which  shall  pass  by  will,  or  by.  the  laws 
regulating  intestate  succession,  or  by  deed,  grant,  sale,  or 
gift,  made  or  intended  to  take  effect  in  possession  or  enjoy- 
ment after  the  death  of  the  grantor,  to  any  person,  abso- 
lutely or  in  trust,  except  to  or  for  the  use  of  the  father, 
mother,  husband,  wife,  lineal  descendant,  brother,  sister, 
adopted  child,  the  lineal  descendant  of  any  adopted  child, 
the  wife  or  widow  of  a  son,  or  the  husband  of  a  daughter, 
of  a  decedent,  or  to  or  for  the  use  of  charitable,  educational, 
or  religious  societies  or  institutions,  the  property  of  which 
is  by  law  exempt  from  taxation,  or  to  a  city  or  town  for 
public  purposes,  shall  be  subject  to  a  tax  of  five  per  cent 
of  its  value,  for  the  use  of  the  commonwealth  ;  and  admin- 
istrators, executors,  and  trustees,  and  any  such  grantees 
under  a  conveyance  made  during  the  grantor's  life,  shall  be 
liable  for  such  taxes,  with  interest,  until  the  same  have 
been  paid  ;  ^  but  no  bequest,  devise,  or  distributive  share  of 

^  Definition  and  History  of  Inheritance  and 
Succession  Taxes. 

The  inheritance,  legacy,  or  succession  tax  may  be  defined  as  an 
excise  or  bonus  imposed  by  the  state  or  government  upon  the  privilege 
of  taking  or  receiving  the  property  of  a  decedent  by  devise,  descent, 


TAXATION   OF   COLLATERAL   LEGACIES   AND   SUCCESSIONS.     507 

an  estate,  unless  its  value  exceeds  five  hundred  dollars, 
shall  be  subject  to  the  provisions  of  this  chapter."  ^ 

or  distribution,  whether  such  property  passes  to  lineal  or  collateral 
heirs  or  to  strangers  to  the  blood.  The  right  to  impose  the  tax  rests 
upon  the  constitutional  power  of  the  government  or  state,  as  a  sover- 
eign, to  change  or  to  repeal  the  laws  governing  the  transmission  of 
property  by  will  or  descent.  The  public  contribution  which  death 
duties  exact  is  predicated  on  the  passing  of  property  as  the  result  of 
death,  as  distinct  from  a  tax  on  property  disassociated  from  its  trans- 
mission or  receipt  by  will  or  as  the  result  of  intestacy.  Such  taxes 
were  known  to  the  Roman  law  and  were  the  ancient  law  of  the  con- 
tinent of  Europe.  In  England  inheritance  and  legacy  taxes  are 
described  under  the  term  "Death  Duties."  In  Hanson's  Death 
Duties,  p.  1,  it  is  said:  ''Historically,  probate  duty  is  the  oldest 
form  of  death  duty,  having  been  established  in  1694."  This  probate 
duty  was  a  fixed  tax,  dependent  on  the  amount  of  the  personal  estate, 
and  payable  by  means  of  stamp  duties  on  the  grant  of  letters  of  pro- 
bate. In  1780  this  tax  was  supplemented  by  what  became  known  as 
a  legacy  tax. 

Legacy  and  succession  taxes  have  been  imposed  by  various  acts  of 
the  Congress  of  the  United  States.  The  earliest  act  of  Congress  im- 
posing a  legacy  tax  was  that  of  July  6,  1797,  1  Stat,  at  Large,  c.  11, 
which  continued  in  force  imtil  June  30,  1802.  The  next  act  imposing 
a  legacy  tax  was  the  act  of  July  1,  1862,  c.  119,  which  was  followed  by 
the  act  of  June  30,  1864.  The  act  last  cited  was  repealed  by  the  act 
of  July  14,  1870,  which  took  effect  October  1,  1870.  Legacy  and  suc- 
cession taxes  were  again  imposed  by  Congress  by  the  "  AVar  Revenue 
Act,"  so  called,  passed  during  the  war  with  Spain,  and  being  the  act 
of  June  13,  1898,  c.  448,  which  was  repealed,  so  far  as  these  taxes  are 
concerned,  by  the  act  of  April  12,  1902,  c.  500,  which  took  effect 
July  1,  1902,  except  as  to  collection  of  and  lien  for  any  taxes  unpaid 


^  The  exemption  of  bequests  not  exceeding  five  hundred  dollars 
and  of  bequests  to  towns  for  any  public  purpose  was  first  made  by 
St.  1895,  c.  307.  Before  the  passage  of  this  statute,  it  was  decided  in 
Essex  V.  Brooks,  164  Mass.  79,  that  a  legacy  to  a  town  for  the  establish- 
ing and  maintaining  of  a  public  library  was  not  subject  to  the  tax. 

The  exemption  of  bequests  not  exceeding  five  hundred  dollars  does 
not  apply  to  legacies  to  which  persons  became  entitled  before  St.  1895, 
c.  307,  took  effect.    Howe  v.  Howe,  179  Mass.  546. 


508       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Sect.  2.  If  a  person  bequeaths  or  devises  property  to 
or  for  the  use  of  a  father,  mother,  husband,  wife,  lineal 

when  the  repealing  act  took  effect.  The  act  of  June  13,  1898,  was 
substantially  a  re-enactment  of  the  provisions  of  the  act  of  June  30, 
18G4,  so  far  as  it  relates  to  legacy  and  succession  taxes,  and  it  imposed 
a  tax  both  on  property  passing  to  lineal  heirs  and  also  on  property 
passing  to  collateral  heirs  and  others,  the  tax  being  a  graded  one  an.l 
increasing  in  proportion  to  the  value  of  the  property  and  to  the  re- 
moteness of  the  relationship  to  the  decedent  ;  all  legacies  or  property 
passing  by  will  or  by  law  to  a  husband  or  wife,  and  all  legacies  or  dis- 
tributive shares  of  personal  property  not  exceeding  $10,000  in  value 
passing  to  other  persons,  being  exempt  from  the  tax.  In  Knowlton  i\ 
Moore,  178  U.  S.  41,  it  was  held  that  the  amount  of  each  particular 
legacy  or  distributive  share,  and  not  the  sum  of  the  whole  personal 
estate  of  a  decedent,  was  the  amount  on  which  the  tax  is  imposed  and 
by  which  the  rate  is  measured. 

A  law  imposing  legacy  and  inheritance  taxes  was  first  enacted  in 
the  United  States  in  Pennsylvania  in  1826.  This  was  followed  by  the 
enactment  of  similar  laws  in  Maryland  in  18i4  ;  Delaware,  1869; 
West  Virginia,  1887;  Connecticut,  New  Jersey,  Ohio,  Maine,  and 
Massachusetts,  1891 ;  Tennessee  in  1891  and  repealed  in  1893;  and  in 
California,  Colorado,  Minnesota,  and  other  States. 

The  first  act  passed  in  ^lassachusetts  which  imposed  a  tax  on  col- 
lateral inheritances  and  successions  was  chapter  425  of  the  acts  of 
1891. 

Pennsylvania  received  from  this  tax  in  1892  over  $1,110,000,  and 
New  York  received  in  the  same  year  over  $1,786,000.  New  York 
imposes  a  small  tax  on  property  passing  to  direct  heirs,  other  than 
husband  or  wife,  and  a  larger  tax  on  property  passing  to  others.  The 
Illinois  law  is  similar  to  that  of  New  York  in  this  respect. 

Massachusetts  has  received  from  the  collateral  inheritance  and  suc- 
cession tax,  exclusive  of  interest,  the  following  amounts  for  the  years 
named,  to  wit:  1892,  $13,854;  1893,  $.39,419  ;  1894,  $239,.368;  1895, 
$419,177;  1896,  $275,573;  1897,  $501,360;  1898,  $563,672;  1899, 
$478,758;  1900,  $397,939;  1901,  $506,093.  In  1901  the  expense  of 
collection,  including  the  compensation  of  appraisers,  charges  of  the 
various  registers  of  probate  and  the  salary  of  the  legacy  tax  clerk,  was 
$2,316.     There  was  also  received  in  1901  for  interest  $8,043. 

It  is  strongly  urged  that  the  laws  imposing  taxes  on  personal  prop- 
erty should  be  repealed,  except  as  to  the  taxes  imposed  on  corpora- 
tions, and  that  a  small  excise  should  be  laid  on  property  of  a  decedent 


TAXATION  OF  COLLATEUAL  LEGACIES  AND  SUCCESSIONS.  509 

descendant,  brother,  sister,  an  adopted  child,  the  lineal 
descendant  of  an  adopted  child,  the  wife  or  widow  of  a 

passing  to  all  persons  other  than  the  husband  or  the  wife ;  and  that 
such  an  excise  would  not  be  burdensome ;  that  it  would  be  equitable; 
and  that  it  would  yield  as  much  as  is  now  derived  from  the  exist- 
ing system,  or  lack  of  system,  or  taxing  personal  property  in 
Massachusetts. 

An  excellent  history  of  inheritance  and  legacy  taxes  can  be  found 
in  the  second  edition  of  Dos  Passes  on  Inheritance  Tax  Law,  and  also 
iu  Hanson's  Death  Daties  and  Dowell's  History  of  Taxation,  vol.  3. 

Constitutionality  of  the  Tax. 

a.     Under  Acts  of  Congress. 

In  Scholey  v.  Rew,  23  Wall.  331,  the  act  of  June  30,  1864,  was  held 
to  be  constitutional  and  valid,  and  a  similar  decision  was  made  in  the 
case  of  Knowlton  v.  Moore,  178  U.  S.  -41,  as  to  sections  29  and  30  of 
act  of  June  13,  1898,  being  the  sections  imposing  a  legacy  and  succes- 
sion tax  and  providing  for  its  collection.  The  case  last  cited  is  a  very 
carefully  considered  one,  and  the  opinion  of  the  court  contains  an 
elaborate  review  of  the  authorities.  In  this  case  it  was  held  that  the 
taxes  upon  legacies  and  distributive  shares  of  personal  property  im- 
posed by  the  "  War  Revenue  Act  "  are  imposed  upon  the  transmission 
or  receipt  of  such  inheritances  and  legacies  and  not  upon  the  property 
itself ;  that  the  direct  taxes  which  must  be  apportioned  under  U.  S. 
Constitution,  Art.  1,  §  10,  do  not  include  the  tax  on  the  transmission  or 
receipt  of  legacies  or  distributive  shares  of  personal  property  imposed 
by  said  act,  as  that  tax  is  a  duty  or  excise,  as  distinguished  from  a 
tax  on  property  ;  that  the  uniformity  required  by  U.  S.  Constitution, 
Art.  1,  §  9,  providing  that  "  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States."  is  not  an  intrinsic  uniformity 
relating  to  the  inherent  character  of  the  tax  as  respects  its  operation 
on  individuals,  but  is  merely  a  geographical  uniformity  requiring 
the  same  plan  and  the  same  method  to  be  operative  throughout  the 
United  States  ;  that  a  difference  between  the  testamentary  and  intes- 
tacy laws  of  the  States  does  not  prevent  the  geographical  uniformity 
of  the  "  War  Revenue  Act,"  under  which  the  primary  right  of  taxa- 
tion upon  legacies  and  distributive  shares  depends  upon  the  degree  of 
relationship  or  want  of  relationship  to  the  deceased,  since  the  rate  is  the 
same  wherever  the  degree  of  relationship  or  want  of  relationship  is  the 
same,  so  that  the  rule  is  uniform,  although  there  may  be  dLffereut  con- 


510       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

son,  or  the  husband  of  a  daughter,  for  life  or  for  a  term  of 
years,  with  the  remainder   to  a  collateral   heir   or   to   a 

ditions  among  the  States  as  to  the  objects  upon  which  the  tax  is 
levied  ;  and  that  the  progressive  rate  feature  of  the  act,  by  which  the 
rates  are  graded  in  accordance  with  the  amounts  of  the  legacies  or 
distributive  shares  and  progressively  increased  as  those  amounts  in- 
crease, cannot  be  held  unconstitutional  on  the  ground  that  it  is  repug- 
nant to  fundamental  principles  of  equality  and  justice,  but  that  the 
question  whether  a  progressive  tax  is  more  just  and  equal  than  a  pro- 
portional one  is,  in  the  absence  of  constitutional  limitation,  a  legis- 
lative, and  not  a  judicial,  question.  This  case  cites  with  approval  the 
opinion  delivered  by  Mr.  Justice  Brown  in  United  States  v.  Perkins, 
163  U.  S.  625,  in  which  he  said:  "  The  tax  is  not  upon  the  property 
itself,  but  upon  the  right  to  dispose  of  it,  and  it  is  not  until  it  has 
yielded  its  contribution  to  the  State  that  it  becomes  the  property  of  the 
legatee."  The  case  of  United  States  j'.  Perkins  involved  the  question 
whether  property  bequeathed  to  the  United  States  was  subject  to  a 
succession  tax,  and  it  was  held  that  it  was.  In  Plummer  r.  Coler,  178 
U.  S.  115,  it  was  decided  that,  under  the  inheritance  tax  laws  of  a 
State,  a  tax  may  validly  be  imposed  on  a  legacy  consisting  of  U.  S. 
bonds  issued  under  a  statute  declaring  them  to  be  exempt  from  taxa- 
tion in  any  form.  This  case  quotes  with  approval  from  the  opinion 
of  the  court  in  Magoun  v.  Illinois  Trust  &  Savings  Bank,  470  U.  S. 
283,  the  following  :  "  The  constitutionality  of  the  (inheritance)  taxes 
has  been  declared,  and  the  principle  upon  which  they  are  based  ex- 
plained, in  United  States  v.  Perkins,  163  U.  S.  625  "  (and  in  sundry 
other  cases  cited).  "  It  is  not  necessary  to  review  these  cases,  or  to 
state  at  length  the  reasoning  by  which  they  are  supported.  They  are 
based  on  two  principles  :  1.  An  inheritance  tax  is  not  one  on  property 
but  one  on  the  succession.  2.  The  right  to  take  property  by  devise  or 
descent  is  the  creature  of  the  law,  and  not  a  natural  right  —  a  privi- 
lege ;  and  therefore  the  authority  which  confers  it  may  impose  con- 
ditions on  it.  From  these  principles  it  is  deduced  that  the  states  may 
tax  the  privilege,  discriminate  between  relatives  and  between  these 
and  strangers,  and  grant  exemptions  ;  and  are  not  precluded  from  this 
power  by  the  provisions  of  the  respective  state  constitutions  requiring 
uniformity  and  equality  of  taxation." 

b.    Under  Laws  of  States  other  than  ^fassachusetts. 

In  California  it  was  decided  in  Re  Wilmerding,  117  Cal.  281,  that 
the  requirement  of  the  California  constitutiou  that  all  property  shall 


TAXATION   OF   COLLATERAL  LEGACIES   AND   SUCCESSIONS.      511 

stranger  to  the  blood,  the  value  of  such  particular  estate 
shall,  within  three  months  after  the  appointment  of  the 

be  taxed  according  to  its  value  does  not  applied  to  the  tax  imposed  by 
the  California  collateral  inheritance  tax  act  of  1893,  as  such  tax  is 
upon  the  right  of  succession  and  not  upon  property ;  and  that  the  dis- 
crimination made  by  the  act  in  favor  of  surviving  brothers  and  sisters 
and  against  the  children  of  deceased  brothers  and  sisters  does  not 
render  the  act  invalid  as  class  legislation. 

In  Colorado  the  validity  of  the  inheritance  tax  act  was  sustained 
in  Re  Inheritance  Tax,  23  Col.  442, 

In  Illinois  it  was  held  in  Kochersperger  v.  Drake,  167  111.  122,  that 
a  statute  creating  classes  of  property  of  deceased  persons  for  the  pur- 
pose of  a  succession  tax,  although  it  exempts  some  classes  from  taxa- 
tion and  provides  different  rates  for  other  classes  but  is  uniform  as  to 
all  property  in  the  same  class,  does  not  violate  the  111.  Constitution 
of  1870,  Art.  9,  requiring  property  to  be  taxed  according  to  its  value. 
In  Magoun  v.. 111.  Trust  &  Savings  Bank,  170  U.  S.  283,  it  was  held 
that  the  legacy  and  inheritance  tax  law  of  Illinois  was  constitutional; 
that  exemptions  from  a  statute  taxing  inheritances  do  not  render  its 
operation  unequal  within  the  meaning  of  the  14th  Amendment  to  the 
Constitution  of  the  United  States ;  and  that  a  collateral  inheritance 
law  which  does  not  impose  a  uniform  rate,  but  classifies  legacies  to 
strangers  to  the  blood  and  imposes  higher  rates  on  the  larger  sums,  is 
not  in  violation  of  the  rule  of  equality  of  the  14th  Amendment.  The 
case  of  Curry  v.  Spencer,  61  N.  H.  624,  which  held  the  New  Hamp- 
shire inheritance  tax  law  to  be  in  violation  of  the  constitution  of  that 
State,  is  characterized  by  the  U.  S.  Supreme  Court  in  the  Magoun 
case  as  "extreme." 

In  Maine  the  inheritance  tax  law  of  that  State  was  held  to  be  con- 
stitutional in  an  able  opinion  in  the  case  of  State  v.  Hamlin,  86  Me. 
495.  For  a  very  valuable  note  to  this  case,  see  41  Am.  State  Rep. 
pp.  580,  581,  582. 

In  New  York  the  carefully  considered  case  of  In  re  Swift,  137  N.  Y. 
77,  holds  that  the  New  York  collateral  tax  act  of  1885,  as  amended,  is 
constitutional. 

In  Ohio,  it  was  decided  in  State  v.  Ferris,  53  Ohio  St.  314  (decided 
in  1895),  that  the  law  imposing  an  inheritance  tax  was  unconstitutional 
simply  because  of  the  exemption  of  estates  of  $20,000  and  under  and 
because,  in  cases  where  the  estate  exceeded  820,000,  the  entire  estate 
was  taxed  without  any  exemption,  and  this  was  held  to  be  in  violation 
of  the  Ohio  bill  of  rights.     But  in  Hagerty  v.  State,  55  Ohio  St.  613, 


512       PROCEEDINGS  IN  THE  TKODATE  COURTS. 

executor,  administrator,  or  trustee,  be  appraised  in  the 
manner  provided  in  section  sixteen  and  deducted  from  the 

(decided  in  1897),  the  act  of  April  20,  1894,  amending  the  act  impos- 
ing a  collateral  inheritance  tax,  was  held  to  be  constitutional,  the 
exemption  features  having  been  omitted  in  this  later  act  which  had 
been  decided  to  be  unconstitutional  in  State  r.  Ferris.  This  later 
Ohio  law  exempted  property  of  the  value  of  !$200,  which  exemption  is 
expressly  authorized  by  the  Ohio  constitution  in  the  levying  of  taxes 
upon  property,  and  imposed  a  uniform  tax  of  five  per  cent  upon  the 
value  of  all  property  in  excess  of  that  amount  passing  to  collateral 
heirs  or  to  strangers  to  the  blood. 

In  Pennsylvania,  in  the  case  of  Strode  v.  Commonwealth,  52  Pa.  St. 
181  (decided  in  1866),  the  appellate  court  affirmed  the  judgment  of 
the  lower  court  and  affirmed  its  opinion,  in  which  it  was  said  :  "  What 
is  called  a  '  collateral  inheritance  tax  '  is  a  bonus  exacted  from  the 
collateral  kindred  and  others  as  the  condition  on  which  they  may  be 
admitted  to  take  the  estate  left  by  a  deceased  relative  or  testator. 
The  estate  does  not  belong  to  them  except  as  a  right  to  it  is  conferred 
by  the  state.  Independent  of  government  no  such  right  could  exist. 
The  death  of  the  owner  would  necessarily  terminate  his  control  over 
it,  and  it  would  pass  to  the  first  who  might  obtain  possession.  The 
right  of  the  owner  to  transfer  it  to  another  after  death,  or  of  kindred 
to  succeed,  is  the  result  of  municipal  regulation  and  must  consequently 
be  enjoyed  subject  to  such  conditions  as  the  state  sees  fit  to  impose. 
And  we  see  the  state  continually  imposing  new  conditions  ;  sometimes 
enlarging,  at  others  restraining,  the  privilege,  and  sometimes  again 
entirely  taking  it  away  by  changing  the  parties  who  are  to  succeed." 
In  Small's  Estate,  151  Pa.  St.  1,  (decided  in  1892).  construing  the  act 
of  May  6,  1887,  it  was  held  that  the  interest  of  a  non-resident  partner 
in  a  limited  partnership  association  located  in  Pennsylvania  was  sub- 
ject to  the  inheritance  tax. 

In  Tennessee  the  inheritance  law  then  in  force  in  that  state  was 
held  to  be  constitutional  in  the  well-considered  case  of  State  v.  Alston, 
94  Tenn.  674  (decided  in  1895). 

c.    Under  the  Law  of  A/assachuselts. 

The  original  act  imposing  a  tax  on  collateral  legacies  and  successions 
was  St.  1891,  c,  425.  In  Minot  v.  Winthrop,  162  Mass.  113,  this  act  was 
held  to  be  constitutional;  that  the  tax  imposed  by  it  was  an  excise; 
and  that  this  excise  was  reasonable  and  was  not  unequal.  The  first 
section  of  this  act  contained  a  proviso  that  no  estate  should  be  sub- 


TAXATION   OF   COLLATERAL    LEGACIES    AND   SUCCESSIONS.     513 

appraised  value  of  such  property,  and  tlie  remainder  shall 
be  subject  to  a  tax  of  five  per  cent  of  its  value."  ^ 

ject  to  the  tax  imposed  by  the  act  unless  the  value  of  the  estate,  after 
the  payment  of  all  debts,  exceeded  |10,000.  This  proviso  was  repealed 
by  St.  1901,  c.  297.  As  to  this  exemption  the  court  say  in  Minot  v. 
Winthrop:  "  The  statutes  of  the  different  states  and  nations  which  have 
levied  taxes  on  devises,  legacies,  and  inheritances  have  usually  made 
exemptions,  and  tliese  have  sometimes  related  to  the  value  of  the 
estates,  and  sometimes  to  the  value  of  the  property  received  by 
the  heirs,  devisees,  legatees,  or  distributees.  The  exemption  in  the 
statute  under  consideration  is  certainly  large  as  an  exemption  of 
estates,  but  it  is  peculiarly  within  fhe  discretion  of  the  legislature 
to  determine  what  exemptions  should  be  made  in  apportioning  the 
burdens  of  taxation  among  those  who  can  best  bear  them,  and  we  are 
not  satisfied  that  this  exemption  is  so  clearly  unreasonable  as  to 
require  us  to  declare  the  statute  void."  The  court  also  say  in  this 
case  :  "  We  are  of  opinion  that  the  privilege  of  transmitting  or  receiv- 
ing by  will  or  descent  property  on  the  death  of  the  owner,  is  a  com- 
modity within  the  meaning  of  this  word  in  the  constitution,  and  that 
an  excise  may  be  laid  upon  it.  Although  St.  1891,  c.  42.5,  in  form 
imposes  a  tax  upon  the  property  which  passes  in  the  manner  described 
in  the  first  section,  yet  the  tax  plainly  is  not  meant  to  be  a  substitute 
for  the  annual  tax  upon  estates,  or  to  be  an  additional  tax  of  that 
nature  ;  the  statute  can  only  take  effect  by  regarding  the  tax  as  an 
excise,  and  the  statute  should  be  so  construed  as  to  take  effect,  if  such 
a  construction  reasonably  can  be  given  to  it.  We  see  no  difficulty  in 
doing  this,  and  are  of  opinion  that  the  statute  was  intended  to  impose 
a  tax  in  the  nature  of  an  excise."  The  opinion  in  Minot  u.  Winthrop 
was  written  by  Chief  Justice  Field,  and  is  elaborate,  exhaustive,  and 
able. 

Decisions  Construing  the  Massachusetts  Law. 

In  Minot  v.  Winthrop,  162  Mass.  113,  it  was  held  that  the  exemption 
of  "  charitable,  educational,  or  religious  societies  or  institutions,  the 
property  of  which  is  exempt  by  law  from  taxation,"  is  confined  to 
societies   and   institutions  the   property   of  which   is  exempt   from 


*  St.  1902,  c.  473,  provides  as  follows :  — 

"  In  all  cases  where  there  has  been  or  shall  be  a  devise,  descent,  or 
bequest  to  collateral  relatives  or  strangers  to  the  blood,  liable  to  col- 

33 


514       PROCEEDINGS  IN  THE  TKOBATE  COURTS. 

"  Sect.  3.  If  a  testator  gives,  bequeaths,  or  devises  to  his 
executors  or  trustees  any  property  otherwise  liable  to  said 

taxation  by  the  law  of  Massachusetts.  To  same  effect  is  Rice  v. 
Bradford,  180  Mass.  515,  in  which  a  legacy  to  Bowdoin  College  was 
held  to  be  subject  to  the  tax. 

The  donor  of  a  power  of  appointment,  rather  than  the  donee, 
must  be  regarded  as  the  decedent  whose  estate  is  subject  to  taxation. 
Emmons  v.  Shaw,  171  Mass.  410. 

The  executor  of  a  foreign  will  proved  in  Massachusetts  is  liable  to 
pay  the  collateral  inheritance  tax  upon  the  following  property  of  the 
testator  within  the  jurisdiction  of  this  commonwealth :  real  estate, 
cash  on  hand,  bonds  of  railroad'^jompanies,  of  cities  without  the  com- 
monwealth, of  other  states  and  of  the  United  States.  Callahan  i'. 
Woodbridge,  171  Mass.  595. 

For  the  purpose  of  determining  on  what  amount  the  tax  is  to  be 
computed,  expenses  of  administration  must  be  deducted,  as  the  tax  is 
to  be  paid  only  on  the  amount  which  passes  to  the  successor  or  suc- 
cessors.    Callahan  v.  Woodbridge,  supra. 

A  legacy  tax  paid'to  the  United  States  under  the  War  Revenue  Act 
of  1898  is  to  be  deducted  before  paying  the  Massachusetts  succession 
tax.     Hooper  v.  Shaw,  176  Mass.  190. 

A  corporation  organized  under  the  laws  of  Massachusetts  for  the 
purpose  of  administering  a  fund  given  to  be  applied  to  charitable 
purposes  is  not  subject  to  the  collateral  inheritance  tax,  and  it  is 
immaterial  that  a  portion  of  the  fund  was  given  to  charitable  institu- 
tions without  the  state.     Balch  v.  Shaw,  174  Mass.  144. 

Property  was  conveyed  prior  to  St.  1891,  c.  425,  by  a  married 
woman  to  a  trustee  to  pay  her  the  income  for  life  and  the  principal 
after  her  death  to  such  persons  as  she  should  appoint  by  will.  She 
died  in  1895,  leaving  a  will  by  which  she  appointed  the  property  to 
persons  not  exempt  under  the  statute.  Held,  that  the  property  was 
subject  to  the  tax.     Crocker  v.  Shaw,  174  Mass.  266. 

Property  of  a  resident  of  Salem,  in  the  hands  of  his  agents  in  New 
York,  consisting  of  bonds  and  stocks  of  foreign  corporations,  a  cer- 
tificate of  indebtedness  of  a  foreign  corporation,  bonds  secured  by 
mortgage  of  real  estate  in  New  Hampshire,  the  makers  of  the  bonds 


lateral  inheritance  tax,  to  take  effect  in  possession  or  come  into  actual 
enjoyment  after  the  expiration  of  one  or  more  life  estates  or  a  term  of 
years,  the  tax  on  such  property  shall  not  be  payable  nor  interest  begin 


TAXATION  OF  COLLATERAL  LEGACIES  AND  SUCCESSIONS.   515 

tax,  in  lieu  of  their  compensation,  the  value  thereof  in 
excess  of  reasonable  compensation,  as  determined  by  the 

and  mortgages  living  in  New  York,  and  of  cash  on  deposit  in  a  savings 
bank  and  with  individuals  in  Brooklyn,  was  held  in  Frothingham  v. 
Shaw,  175  Mass.  59,  to  be  subject  to  the  Massachusetts  collateral 
inheritance  tax,  there  having  been  no  administration  in  New  York 
and  the  Massachusetts  executor  having  taken  possession  of  the 
property. 

The  value  of  the  property  subject  to  the  tax  is  to  be  determined 
as  of  the  date  of  the  death  of  the  testator  or  intestate,  and  the  income 
subsequently  accruing  is  not  subject  to  the  tax.  Hooper  v.  Bradford, 
178  Mass.  95;  Howe  v.  Howe,  179  Mass.  546. 


to  run  thereon  until  the  person  or  persons  entitled  thereto  shall  come 
into  actual  possession  of  such  property,  and  the  tax  thereon  shall  be 
assessed  upon  the  value  of  the  property  at  the  time  when  the  right  of 
possession  accrues  to  the  person  entitled  thereto  as  aforesaid,  and  such 
person  or  persons  shall  pay  the  tax  upon  coming  into  possession  of 
such  property.  The  executor  or  administrator  of  the  decedent's  estate 
may  settle  his  account  in  the  probate  court  without  being  liable  for 
said  tax  :  provided,  that  such  person  or  persons  may  pay  the  tax  at  any 
time  prior  to  their  coming  into  possession,  and  in  such  cases  the  tax 
shall  be  assessed  on  the  value  of  the  estate  at  the  time  of  the  payment 
of  the  tax,  after  deducting  the  value  of  the  life  estate  or  estates  for 
years;  and  provided,  further,  that  the  tax  on  real  estate  shall  remain  a 
lien  on  the  real  estate  on  which  the  same  is  chargeable  until  it  is  paid." 

In  reply  to  a  communication  from  the  treasurer  and  receiver-general, 
inquiring,  first,  whether  this  statute  of  1902  applies  to  the  estates  of 
non-resident  decedents,  and,  second,  whether  the  statute  applies  to 
estates  of  resident  decedents  where  the  intervening  life  estate  is  tax- 
able, the  attorney-general  of  the  commonwealth  gave  his  opinion  under 
date  of  August  26,  1902,  in  which  he  says:  — 

"  The  first  question  is  not  free  from  difficulty.  The  statute  does 
not  in  terms  distinguish  between  the  estates  of  resident  and  non-res- 
ident decedents,  and  there  is  much  force  in  the  contention  that  no 
such  distinction  was  contemplated  by  the  legislature  in  its  enactment. 
It  will  result,  however,  if  the  act  is  construed  to  include  the  estates  of 
non-resident  decedents,  that  the  existing  law  relating  to  the  taxation 
of  collateral  legacies  and  successions,  will  become  practically  inopera- 
tive or  at  least  ineffective  in  every  case  where  personal  property  of  a 
non-resident  decedent,  which  may  be  within  the  jurisdiction  of  the 


516       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

probate  court  upon  the  application  of  any  interested  party 
or  of  the  treasurer  and  receiver-general,  shall  nevertheless 
be  subject  to  the  provisions  of  this  chapter." 

commonwealth,  vests  in  or  comes  into  the  actual  possession  of  a  col- 
lateral relative  or  stranger  to  the  blood  liable  to  the  collateral  inheri- 
tance tax,  after  the  expiration  of  one  or  more  life  estates,  and  both 
the  property  and  the  legatee  in  whom  it  vests  are  beyond  the  limits  of 
the  commonwealth. 

In  view  of  what  I  deem  to  be  the  purpose  of  the  statute,  I  cannot 
believe  that  the  legislature  intended  by  implication  to  effect  so  radical 
a  change  in  the  existing  law.  The  undoubted  object  of  St.  1902, 
0.  473,  was  not  to  disturb  the  ultimate  liability  of  taxable  persons  and 
its  enforcement,  as  at  present  fixed  under  the  collateral  inheritance 
tax  law,  but  to  revise  or  amend  the  law  only  so  far  as  relates  to  the 
time  when  such  liability  shall,  in  certain  cases,  accrue.  Upon  this 
construction  of  the  statute,  I  am  forced  to  take  the  view  that  it  does 
not  serve  to  postpone  the  time  when  the  tax  shall  be  due  and  payable, 
where  there  has  been  a  devise,  descent,  or  bequest,  consisting  of  prop- 
erty in  this  commonwealth  belonging  to  a  non-resident,  which  vests 
or  takes  effect  in  possession  in  the  future,  and  that  your  first  question 
must  be  answered  in  the  negative. 

This  conclusion  receives  confirmation  from  the  language  of  the  act 
itself.  The  statute  provides  that  "  The  executor  or  administrator  of 
the  decedent's  estate  may  settle  his  account  in  the  probate  court  with- 
out being  liable  for  said  tax,"  a  provision  which  can  only  apply  to  the 
estates  of  resident  decedents,  since  the  executor  or  administrator  of  a 
non-resident  decedent  is  not  required  to  file  an  account  in  the  probate 
court  of  this  commonwealth,  but  may  receive  the  property  of  the  de- 
cedent which  may  be  within  the  jurisdiction  of  the  commonwealth, 
upon  the  allowance  by  the  court  of  the  petition  required  by  R.  L. 
c.  148,  §  3  (see  R.  L.  c.  15,  §§  12,  13,  and  14),  if  it  appears  that  such 
executor  or  administrator  is,  in  the  State  where  he  is  appointed,  liable 
for  the  property  so  received.  This  language,  therefore,  supports  the 
conclusion  that  the  provisions  of  St.  1902,  c.  473,  can  only  apply  to 
estates  the  executors  or  administrators  of  which  are  compelled  to  file 
an  account  in  the  probate  courts  of  this  commonwealth. 

To  your  second  question,  I  am  of  the  opinion  that  I  must  reply  in 
the  affirmative.  Neither  the  purpose  nor  the  language  of  the  act  can 
be  construed  to  warrant  a  distinction  between  an  intervening  life  es- 
tate which  is  taxable  and  one  which  is  not  taxable.  The  statute 
clearly  postpones  the  time  when  the  tax  shall  become  due  upon  a  tax- 


TAXATION   OF   COLLATERAL  LECrACIES   AND   SUCCESSIONS.      517 

"  Sect.  4.  Taxes  imposed  by  the  provisions  of  tliis  chapter 
shall  be  payable  to  the  treasurer  and  receiver-general  by 
the  executors,  administrators,  or  trustees,  at  the  expiration 
of  two  years  after  the  date  of  their  giving  bond ;  but  if 
legacies  or  distributive  shares  are  paid  within  the  two 
years,  the  taxes  thereon  shall  be  payable  at  the  same  time. 
If  the  probate  court  acting  under  the  provisions  of  section 
thirteen  of  chapter  one  hundred  and  forty-one  has  ordered 
the  executor  or  administrator  to  retain  funds  to  satisfy  a 
claim  of  a  creditor,  the  payment  of  the  tax  may  be  sus- 
pended by  the  court  to  await  the  disposition  of  such  claim. 
If  the  taxes  are  not  paid  when  due,  interest  shall  be 
charged  and  collected  from  the  time  the  same  became 
payable ;  and  said  taxes  and  interest  shall  be  and  remain 
a  lien  on  the  property  subject  to  the  taxes  until  the  same 
are  paid." 

"  Sect.  5.  An  executor,  administrator,  or  trustee  holding 
property  subject  to  said  tax  shall  deduct  the  tax  therefrom 

able  remainder  to  the  time  when  such  remainder  vests  in  the  remain- 
derman, without  reference  to  the  character  of  the  hfe  estate  which 
precedes  it." 

In  Minot  v.  Winthrop,  162  Mass.  113,  decided  before  the  passage  of 
St.  1902,  c.  473,  where  a  testatrix  had  given  the  income  of  the  sum  ot 
ten  thousand  dollars  to  her  husband  and,  on  his  death,  the  principal 
to  his  daughter,  who  was  not  the  daughter  of  the  testatrix,  it  was  held 
that,  although  the  legacy  to  the  husband  was  exempt  from  the  tax, 
the  tax  should  be  computed  on  the  daughter's  interest  and  deducted 
from  the  principal  and  paid  over  to  the  treasurer  of  the  commonwealth 
at  the  expiration  of  two  years  from  the  date  of  the  giving  of  bond  by 
the  executor,  or  when  the  legacy  was  paid,  if  paid  within  the  two 
years.  It  was  also  held  in  Minot  v.  Winthrop  that  the  tax  on  an  an- 
nuity was  to  be  paid  out  of  the  annuity  as  soon  as  the  annuity  became 
payable,  and  at  the  time  when  payments  on  account  of  it  are  made, 
even  though  the  effect  might  be  that  the  first  payment  or  payments  on 
account  of  the  annuity  might  be  exhausted  by  the  tax.  See  also 
Howe  V.  Howe,  179  Mass.  546. 


518  PROCEEDINGS    IN    THE    PliOBATE    COURTS. 

or  collect  it  from  the  legatee  or  person  entitled  to  said 
property,  and  he  shall  not  deliver  property  or  a  specific 
legacy  subject  to  said  tax  until  he  has  collected  the  tax 
thereon.  An  executor  or  administrator  shall  collect  taxes 
due  upon  land  which  is  subject  to  tax  under  the  provisions 
hereof  from  the  heirs  or  devisees  entitled  thereto,  and  he 
may  be  authorized  to  sell  said  land  according  to  the  pro- 
visions of  section  eight  if  they  refuse  or  neglect  to  pay 
said  tax." 

"  Sect.  6.  If  a  legacy  subject  to  said  tax  is  charged  upon 
or  payable  out  of  real  estate,  the  heir  or  devisee,  before 
paying  it,  shall  deduct  said  tax  therefrom  and  pay  it  to  the 
executor,  administrator,  or  trustee,  and  the  tax  shall  remain 
a  charge  upon  said  real  estate  until  it  is  paid.  Payment 
thereof  may  be  enforced  by  the  executor,  administrator,  or 
trustee  in  the  same  manner  as  the  payment  of  the  legacy 
itself  could  be  enforced." 

"  Sect.  7.  If  a  pecuniary  legacy  is  given  to  any  person 
for  a  limited  period,  the  executor,  administrator,  or  trustee 
shall  retain  the  tax  on  the  whole  amount ;  but  if  it  is  not 
in  money,  he  shall  apply  to  the  probate  court  having  juris- 
diction of  his  accounts  to  make  an  apportionment,  if  the 
case  requires  it,  of  the  sum  to  be  paid  into  his  hands  by 
such  legatee  on  account  of  said  tax,  and  for  such  further 
orders  as  the  case  may  require." 

"  Sect.  8.  The  probate  court  may  authorize  executors, 
administrators,  and  trustees  to  sell  the  real  estate  of  a 
decedent  for  the  payment  of  said  tax  in  the  same  manner 
as  it  may  authorize  them  to  sell  real  estate  for  the  payment 
of  debts." 

"Sect.  9.  An  inventory  of  every  estate,  any  part  of  which 
may  be  subject  to  a  tax  under  the  provisions  of  this  chapter, 
shall  be  filed  by  the  executor,  administrator,   or  trustee 


TAXATION   OF  COLLATERAL   LEGACIES   AND   SUCCESSIONS.      519 

within  three  months  after  his  appointment.  If  he  neglects 
or  refuses  to  file  such  inventory,  he  shall  be  liable  to  a 
penalty  of  not  more  than  one  thousand  dollars,  which  shall 
be  recovered  by  the  treasurer  and  receiver-general ;  and 
the  register  of  probate  shall  notify  the  treasurer  and 
receiver-general  of  any  such  neglect  or  refusal  within 
thirty  days  after  the  expiration  of  the  said  three  months." 

"  Sect.  10.  A  copy  of  the  inventory  and  appraisal  of  every 
estate,  any  part  of  which  is  subject  to  a  tax  under  the  pro- 
visions of  this  chapter  or,  if  the  estate  can  be  conveniently 
separated,  a  copy  of  the  inventory  and  appraisal  of  such 
part,  shall  within  thirty  days  after  it  has  been  filed  be 
sent  by  the  register  of  probate,  by  mail,  to  the  treasurer 
and  receiver-general  without  charge  therefor.  A  refusal 
or  neglect  by  the  register  of  probate  so  to  send  a  copy  of 
such  inventory  and  appraisal  shall  be  a  breach  of  his 
official  bond." 

"  Sect.  11.  If  real  estate  of  a  decedent  so  passes  to 
another  person  as  to  become  subject  to  said  tax,  his  execu- 
tor, administrator,  or  trustee  shall  inform  the  treasurer  and 
receiver-general  thereof  within  six  months  after  his  appoint- 
ment, or,  if  the  fact  is  not  known  to  him  within  that  time, 
then  within  one  month  after  the  fact  becomes  known  to 
him." 

"Sect.  12.  If  a  foreign  executor,  administrator,  or  trustee 
assigns  or  transfers  any  stock  or  obligation  in  any  national 
bank  located  in  this  commonwealth,  or  in  any  corporation 
organized  under  the  laws  of  this  commonwealth,  owned  by 
a  deceased  non-resident  at  the  time  of  his  death  and  liable 
to  a  tax  under  the  provisions  of  this  chapter,  the  tax  shall 
be  paid  to  the  treasurer  and  receiver-general  at  the  time  of 
such  assignment  or  transfer,  and  if  it  is  not  paid  when  due 
such  executor,  administrator,  or  trustee  shall  be  personally 


520       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

liable  therefor  until  it  is  paid.  A  bank  located  in  this 
commonwealth  or  a  corporation  organized  under  the  laws 
of  this  commonwealth  which  shall  record  a  transfer  of  any 
share  of  its  stock  or  of  its  obligations  made  by  a  foreign 
executor,  administrator,  or  trustee,  or  issue  a  new  certifi- 
cate for  a  share  of  its  stock  or  of  the  transfer  of  an  obliga- 
tion at  the  instance  of  a  foreign  executor,  administrator,  or 
trustee,  before  all  taxes  imposed  thereon  by  the  provisions 
of  this  chapter  have  been  paid,  shall  be  liable  for  such  tax 
in  an  action  of  contract  brought  by  the  treasurer  and 
receiver-general."  ^ 

"  Sect.  13.  Securities  or  assets  belonging  to  the  estate  of  a 
deceased  non-resident  shall  not  be  delivered  or  transferred 
to  a  foreign  executor,  administrator,  or  legal  representa- 
tive of  said  decedent,  unless  such  executor,  administrator, 
or  legal  representative  has  been  licensed  to  receive  such 
securities  or  assets  under  the  provisions  of  section  three 
of  chapter  one  hundred  and  forty-eight,  without  serving 
notice  upon  the  treasurer  and  receiver-general  of  the  time 
and  place  of  such  intended  delivery  or  transfer  seven 
days  at  least  before  the  time  of  such  delivery  or  transfer. 
The  treasurer  and  receiver-general,  either  personally  or  by 
representative,  may  examine  such  securities  or  assets  at 
the  time  of  such  delivery  or  transfer.    Failure  to  serve  such 

^  The  fact  that  shares  of  stock  in  corporations  organized  under  the 
laws  of  this  commonwealth,  and  of  national  banking  corporations 
located  here,  belonging  to  a  resident  of  another  state,  the  certificates 
of  which  are  there  at  the  time  of  his  death,  are  transferred  there  by 
the  executor  of  his  will  under  authority  of  his  appointment  in  that 
state  before  he  is  appointed  executor  here,  does  not  exempt  such  shares 
from  the  collateral  inheritance  tax  here.  Greves  v.  Shaw,  173  Mass. 
205.  Stock  of  the  Boston  &  Albany  R.  R.  Co.,  a  corporation  having 
its  franchises  from  Massachusetts  and  also  from  New  York,  belonging 
to  the  estate  of  a  deceased  non-resident,  is  subject  to  the  tax.  Moody 
V.  Shaw,  173  Mass.  375. 


TAXATION  OF  COLLATERAL  LEGACIES  AND  SUCCESSIONS.   521 

notice  or  to  allow  such  examination  shall  render  the  per- 
son or  corporation  making  the  delivery  or  transfer  liable 
in  an  action  of  contract  brought  by  the  treasurer  and 
receiver-general  to  the  payment  of  the  tax  due  upon  said 
securities  or  assets." 

"  Sect.  14.  The  treasurer  and  receiver-general  shall  be 
made  a  party  to  all  petitions  by  foreign  executors,  admin- 
istrators, or  trustees  brought  under  the  provisions  of  section 
three  of  chapter  one  hundred  and  forty-eight,  and  no  de- 
cree shall  be  made  upon  any  such  petition  unless  it  appears 
that  notice  of  such  petition  has  been  served  on  the  treas- 
urer and  receiver-general  fourteen  days  at  least  before  the 
return  day  of  such  petition." 

"  Sect.  15.  If  a  person  who  has  paid  such  tax  afterward 
refunds  a  portion  of  the  property  on  which  it  was  paid  or 
if  it  is  judicially  determined  that  the  whole  or  any  part  of 
such  tax  ought  not  to  have  been  paid,  said  tax,  or  the  due 
proportion  thereof,  shall  be  repaid  to  him  by  the  executor, 
administrator,  or  trustee." 

"  Sect.  16.  Said  tax  shall  be  assessed  upon  the  actual 
value  of  said  property  as  found  by  the  probate  court. 
Upon  the  application  of  the  treasurer  and  receiver-general 
or  of  any  party  interested  in  the  succession,  the  probate 
court  shall  appoint  three  disinterested  appraisers  who,  first 
being  sworn,  shall  appraise  such  property  at  its  actual 
market  value  and  shall  make  return  thereof  to  said  court. 
Such  return,  when  accepted  by  said  court,  shall  be  final. 
The  fees  of  said  appraisers,  as  determined  by  the  judge  of 
said  court,  shall  be  paid  by  the  treasurer  and  receiver- 
general.  The  value  of  an  annuity  or  life  estate  shall  be 
determined  by  the  '  actuaries'  combined  experience 
TABLES,'  at  four  per  cent  compound  interest."  ^ 

^  The  value  of  the  property  subject  to  the  tax  is  to  be  determined 


522       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

"  Sect.  17.  The  probate  court  having  jurisdiction  of  the 
settlement  of  the  estate  of  the  decedent  shall,  subject  to 
appeal  as  in  other  cases,  hear  and  determine  all  questions 
relative  to  said  tax  affecting  any  devise,  legacy,  or  inheri- 
tance, and  the  treasurer  and  receiver-general  shall  repre- 
sent the  commonwealth  in  any  such  proceedings."  ^ 

"  Sect.  18.  If,  upon  the  decease  of  a  person  leaving  an 
estate  liable  to  a  tax  under  the  provisions  of  this  chapter, 
a  will  disposing  of  such  estate  is  not  offered  for  probate,  or 
an  application  for  administration  made  within  four  months 
after  such  decease,  the  proper  probate  court,  upon  appli- 
cation by  the  treasurer  and  receiver-general,  shall  appoint 
an  administrator." 

"  Sect.  19.  No  final  account  of  an  executor,  adminis- 
trator, or  trustee  shall  be  allowed  by  the  probate  court  unless 
such  account  shows,  and  the  judge  of  said  court  finds,  that 
all  taxes  imposed  by  the  provisions  of  this  chapter  upon  any 
property  or  interest  therein  belonging  to  the  estate  to  be 

as  of  the  date  of  the  death  of  the  testator  or  intestate.  Hooper  v. 
Bradford,  178  Mass.  95;  Howe  i'.  Howe,  179  Mass.  546. 

If  an  annuity  of  a  life  estate  is  subject  to  the  tax,  the  tax  is  to  be 
paid  out  of  the  annuity  or  out  of  the  income  of  the  life  estate,  and  at 
the  time  when  payments  are  first  made  on  account  of  the  annuity  or 
life  estate.     Minot  v.  Winthrop,  162  Mass.  113. 

The  value  of  an  annuity  or  of  a  life  estate  is  to  be  determined 
according  to  the  "  actuaries'  combined  experience  table  "  and  not 
according  to  the  time  that  the  annuitant  or  person  entitled  to  the  life 
estate  actually  lived.     Howe  v.  Howe,  179  Mass.  546. 

^  The  jurisdiction  of  the  probate  court  under  this  section  does  not 
take  away  the  right  of  a  legatee  to  sue  for  his  legacy  at  common  law 
in  the  superior  court  and  to  have  the  question  heard  and  determined 
there  whether  the  legacy  is  subject  to  a  tax.  Essex  v.  Brooks,  164 
Mass.  79. 

The  probate  court  has  jurisdiction  of  a  petition  by  the  executor  of 
a  ioreign  will  proved  in  this  commonwealth  for  instructions  whether 
he  is  liable  to  pay  a  tax  upon  the  property,  real  and  personal,  of  the 
testate  found  here.     Callahan  v.  Woodbridge,  171  Mass.  595. 


TAXATION   OF   COLLATERAL   LEGACIES    AND   SUCCESSIONS.     523 

settled  by  said  account  liave  been  paid  ;  and  the  receipt  of 
tlie  treasurer  and  receiver-general  for  such  tax  shall  be  the 
proper  voucher  for  such  payment." 

"  Sect.  20.  The  treasurer  and  receiver-general  shall 
commence  an  action  for  the  recovery  of  any  of  said  taxes 
within  six  months  after  the  same  become  payable ;  and 
also  whenever  the  judge  of  a  probate  court  certifies  to  him 
that  the  final  account  of  an  executor,  administrator,  or 
trustee  has  been  filed  in  such  court  and  that  the  settlement 
of  the  estate  is  delayed  because  of  the  non-payment  of 
said  tax.  The  probate  court  shall  so  certify  upon  the  ap- 
plication of  any  heir,  legatee,  or  other  person  interested 
therein,  and  may  extend  the  payment  of  said  tax  when- 
ever the  circumstances  of  the  case  require."  ^ 

PRACTICE   OF   treasurer's   DEPARTMENT   IN    DETERMINING 
AMOUNT    OF   TAX. 

It  may  be  of  service  to  state  in  a  general  way  the  prac- 
tice of  the  department  of  the  treasurer  of  the  common- 
wealth in  regard  to  certain  questions  which  frequently 
arise  in  determining  the  amount  upon  which  the  tax  is  to 
be  paid.  The  law  provides  that  the  debts  and  charges  of 
administration  are  to  be  deducted,  but  there  might  be  cer- 
tain expenses  and  charges  of  an  administrator  or  executor 
which  would  be  allowed  by  a  probate  court,  if  assented  to 
by  the  parties  in  interest,  and  which  would  not  be  allowed 

^  The  provision  that  the  treasurer  of  the  commonwealth  shall 
within  six  months  after  the  taxes  are  due  and  payable  (§  4  providing 
that  the  taxes  shall  be  payable  by  executors,  administrators,  and  trus- 
tees at  the  expiration  of  two  years  from  the  date  of  their  giving  bond), 
is  directory  merely,  and  does  not  limit  the  right  of  recovery  by  the 
treasurer  of  the  commonwealth  to  two  years  and  six  months  after  the 
giving  of  bonds  by  executors  and  trustees.  Howe  v.  Howe,  179  Mass. 
546. 


524       PROCEEDINGS  IN  THE  PROBATE  COURTS. 

by  the  treasurer.  For  instance,  taxes  paid  by  the  adminis- 
trator or  executor  on  real  estate,  if  the  taxes  were  assessed 
as  of  a  date  subsequent  to  the  death  of  the  testate  or  intes- 
tate. Taxes  are  assessed  as  of  May  1  in  each  year.  If  the 
deceased  person  died  at  any  time  prior  to  May  1,  the  tax 
assessed  on  his  property  on  May  1  of  the  year  of  his  death 
would  not  be  a  debt  which  the  treasurer  would  allow  to  be 
deducted.  So  also  of  repairs  on  real  estate.  Briefly,  the 
treasurer  allows  to  be  deducted  only  the  strictly  legal  debts 
and  charges  of  administration. 

If  the  testator  gives  by  will  a  specific  legacy  to  a  person 
not  exempt  from  payment  of  the  legacy  tax  and  directs 
that  the  tax  thereon  shall  be  paid  out  of  the  residue  of  his 
estate,  the  legacy  is  construed  as  one  of  a  sum  equal  to  the 
specific  legacy  plus  the  tax  thereon ;  for  instance,  if  the 
legacy  was  five  thousand  dollars,  the  tax  thereon  would  be 
two  hundred  and  fifty  dollars,  and  the  legacy  is  construed 
by  the  treasurer  as  if  it  had  been  a  legacy  of  five  thousand 
two  hundred  and  fifty  dollars  and  the  tax  would  be  col- 
lected on  this  amount. 


APPENDIX„ 


ATPENDIX. 


PROBATE  AND  EQUITY  RULES 

Prepared  by  the  Judges  of  the  Probate  Courts  for  regulating 
THE  Practice  and  conducting  the  Business  in  their  Courts, 
and  approved  by  the  scpreme  judicial  court,  to  take  effect 
and  be  in  force  throughout  the  commonwealth  on  and  after 
May  15,  1894. 


PROBATE   RULES. 


I. 


Any  party  may  appear  in  the  Probate  Court  in  person,  or 
by  an  attorney  authorized  to  practice  in  the  courts  of  this 
Commonwealth,  or  by  a  person  authorized  by  a  writing,  filed 
in  said  court,  for  that  purpose. 

Any  person  appearing  for  another  in  the  Probate  Court 
shall  enter  his  appearance  in  writing,  giving  his  name,  place 
of  residence  or  business,  the  matter  in  which,  and  the  name 
or  names  of  the  person  or  persons  for  w^hom,  he  appears. 
Said  writing  shall  be  filed  with  the  register,  and  the  fact 
entered  in  the  docket. 

Each  petition  shall  be  considered  a  separate  proceeding,  and 
appearance  of  the  attorney  entered  accordingly. 

IL 

If  a  party  shall  change  his  attorney,  pending  any  proceed- 
ing, the  name  of  the  new  attorney  shall  be  substituted  on  the 
docket  for  that  of  the   former  attorney,  and  notice  thereof 


528  APPENDIX. 

given  to  the  adverse  party ;  and  until  such  notice  of  the 
change  of  an  attorney,  all  notices  given  to  or  by  the  attorney 
first  appointed  shall  be  considered  in  all  respects  as  notice  to 
or  from  his  client,  except  in  cases  in  which  by  law  the  notice 
is  required  to  be  given  to  the  party  personally ;  provided,  how- 
ever, that  nothing  in  these  rules  shall  be  construed  to  prevent 
any  party  interested  from  appearing  for  himself  in  the  man- 
ner provided  by  law ;  and  in  such  case,  the  party  so  appearing 
shall  be  subject  to  the  same  rules  that  are  or  may  be  provided 
for  attorneys  in  like  cases,  so  far  as  the  same  are  applicable. 

III. 

When  the  authority  of  an  attorney-at-law  to  appear  for  any 
party  shall  be  demanded,  if  the  attorney  shall  declare  that  he 
has  been  duly  authorized  to  appear  by  an  application  made 
directly  to  him  by  such  party,  or  by  some  person  whom  he 
believes  to  have  been  authorized  to  employ  him,  such  declara- 
tion shall  be  deemed  and  taken  to  be  evidence  of  authority  to 
appear  and  prosecute  or  defend  in  any  action  or  proceeding. 

IV. 

In  addition  to  making  appointments  of  guardians  ad  litem 
in  cases  required  by  statute,  whenever  it  shall  appear  that  a 
minor  is  interested  in  any  matter  pending,  a  guardian  ad  litem, 
for  such  minor  may  be  appointed  by  the  court  at  its  discre- 
tion, with  or  without  notice. 

V. 

The  court  will  grant  commissions  to  take  the  depositions  of 
witnesses  without  the  Commonwealth  ;  and  any  party  may, 
on  application  to  the  Register,  obtain  a  commission,  which 
shall  be  directed  to  any  commissioner  appointed  by  the  gov- 
ernor of  the  Commonwealth  to  take  depositions  in  any  other 
of  the  United  States,  or  the  commission  may  be  directed  to 
any  justice  of  the  peace,  notary  public,  or  other  officer  legally 
empowered  to  take  depositions  or  affidavits  in  the  State  or 
country  where  the  deposition  is  to  be  taken.     In  each  case 


APPENDIX.  529 

the  depositions  shall  be  taken  upon  interrogatories,  to  be  filed 
by  the  party  applying  for  the  commission,  and  upon  such 
cross-interrogatories  as  shall  be  filed  by  the  adverse  party,  — 
the  whole  of  which  interrogatories  shall  be  annexed  to  the 
commission.  The  party  applying  for  the  commission  shall  in 
each  case  file  his  interrogatories  in  the  register's  office,  and 
give  notice  thereof  to  the  adverse  party,  or  his  attorney,  seven 
days  at  least  before  taking  out  the  commission,  and  fourteen 
days  at  least  before  the  taking,  if  the  party  or  his  attorney 
live  out  of  the  Commonwealth.  But  where  the  adverse  party 
does  not  appear,  such  interrogatories  need  not  be  exhibited  to 
him,  nor  notice  be  given  to  him  of  the  same.  And  when  a 
deposition  shall  be  taken  and  certified  by  any  person  as  a 
justice  of  the  peace,  or  other  officer  as  aforesaid,  by  force  of 
such  commission,  if  it  shall  be  objected  that  the  person  so 
taking  and  certifying  the  same  was  not  such  officer,  the  bur- 
den of  proof  shall  be  on  the  party  so  objecting ;  and  if  a  like 
objection  shall  be  made  to  a  deposition  taken  without  such 
commission,  it  shall  be  incumbent  on  the  party  producing  the 
deposition  to  prove  that  it  was  taken  and  certified  by  a  person 
duly  authorized. 

VI. 

In  all  cases  where  depositions  shall  be  taken  on  interroga- 
tories, no  party  shall  be  permitted  to  attend  at  the  taking  of 
such  deposition,  either  himself,  or  by  attorney  or  agent ;  nor 
be  permitted  to  communicate  by  interrogatories  or  sugges- 
tions with  the  deponent  while  giving  his  deposition.  It  shall 
be  the  duty  of  the  commissioner  to  take  such  deposition  in  a 
place  separate  and  apart  from  all  other  persons,  and  to  permit 
no  person  to  be  present  during  such  examination,  except  the 
deponent  and  himself,  and  such  disinterested  person,  if  any, 
as  he  may  think  fit  to  appoint  as  a  clerk  to  assist  him  in  re- 
ducing the  deposition  to  writing.  And  it  shall  be  the  duty  of 
the  commissioner  to  put  the  several  interrogatories  and  cross- 
interrogatories  to  the  deponent  in  their  order,  and  to  take  the 
answer  of  the  deponent  to  each,  fully  and  clearly,  before  pro- 
ceeding to  the  next;  and  not  to  read  to  the  deponent,  nor 

34 


530  APPENDIX. 

permit  the  deponent  to  read,  a  succeeding  interrogatory  until 
the  answer  to  the  preceding  has  been  fully  taken  down. 

And  it  shall  be  the  duty  of  the  register,  on  issuing  a  com- 
mission to  take  a  deposition  on  interrogatories,  to  insert  the 
substance  of  this  order  therein,  or  to  annex  this  order,  or  the 
substance  thereof,  to  the  commission,  by  way  of  notice  and 
instruction  to  the  commissioner. 

VIT. 

All  depositions  shall  be  opened  and  filed  by  the  register 
when  received.  The  deposition  shall  afterwards  be  in  his 
custody,  subject  to  the  order  of  the  coui"t,  as  other  documents 
in  the  case ;  and  if  not  read  on  the  trial  by  the  party  taking 
it,  it  may  be  used  by  any  other  party,  if  he  sees  fit,  he  paying 
the  costs  of  taking  the  same. 

VIII. 

Whenever,  in  any  case,  a  notice  given  in  accordance  with 
the  general  forms  of  procedure  or  otherwise  is  held  by  the 
judge  to  be  insufficient,  he  may  order  such  further  notice  as 
the  case  requires. 

IX. 

No  executor  or  administrator  shall  receive  any  compensa- 
tion by  way  of  a  commission  upon  the  estate  by  him  admin- 
istered, but  shall  be  allowed  his  reasonable  expenses  incurred 
in  the  execution  of  his  trust,  and  such  compensation  for  his 
services  as  the  court  in  each  case  may  deem  just  and  reason- 
able. The  account  shall  contain  an  itemized  statement  of  the 
nature  of  the  services  rendered,  and  of  such  other  matters  as 
may  be  necessary  to  enable  the  court  to  determine  what  com- 
pensation is  reasonable. 

X. 

Probate  accounts  should  be  stated  in  schedules  as  follows  :  — 

1.    Schedule  A.     Containing   cash  items   only,   beginning 

with  the  amount  of  cash  in  the  inventory,  or  with  the  cash 

balance  of  the  previous  account,  followed  by  items  of  every 


APPENDIX.  r.31 

sum  of  money  received,  whether  from  the  sale  of  real  or  per- 
sonal estate  or  otherwise. 

2.  Schedule  B.  Containing  every  sum  of  money  paid  for 
any  purpose. 

3.  Schedule  C.  Containing  all  items  of  personal  estate 
(other  than  cash),  whether  the  same  were  stated  in  the  inven- 
tory, or  subsequently  came  to  the  possession  or  knowledge  of 
the  accountant,  together  with  the  valuation  put  upon  them  by 
inventory  or  by  the  accountant. 

4.  Schedule  D.  Containing  all  items  of  property  that  have 
been  delivered  by  order  of  the  court  or  otherwise  without 
having  been  converted  into  cash. 


XI. 

Notice  upon  an  account  not  intended  as  final  will  be  issued 
only  by  direction  of  the  judge. 

Every  such  account,  when  no  notice  has  been  ordered,  unless 
accompanied  by  the  assent  in  writing  of  all  persons  interested, 
will  be  filed,  the  footings  of  its  schedules  entered  upon  the 
docket,  and  the  consideration  of  its  allowance  will  be  post- 
poned till  the  hearing  upon  the  final  account. 


EQUITY  EULES. 


In  all  cases  in  equity  the  petition  shall  begin  after  the 
address,  by  stating  the  names  and  known  residence  of  all 
persons  interested,  together  with  any  disability  of  any  of 
them,  and  then  proceed  to  state  fully  all  facts  necessary  to 
be  proved  to  maintain  the  petitioner's  claim.  It  shall  de- 
scribe all  property  to  be  affected  thereby,  with  sufficient 
accuracy  for  identification,  and  contain  a  special  prayer  for 
each  form  of  relief  desired,  as  well  as  one  for  general  relief. 
No  other  allegations,  charges,  or  prayers  need  be  included. 


532  APPENDIX. 

(Form  of  Petition.) 

To  the  Honorahle  the  Judge  of  the  Probate  Court  in  and  for 

the  County  of 

Eespectfully  represents  ,  petitioners  town  , 

county  ,  State  ,  that  bring  this  petition  against 

,  respondents  town  ,  county  ,  State  , 

and  allege  them  to  be  all  the  parties  interested  in  the  matter 

of  said  petition,  and  further  represent 

II. 

The  original  process  to  require  the  appearance  of  respond- 
ents shall  be  a  citation  in  the  following  form  :  — 
Commonwealth  of  Massachusetts. 

ss.  Probate  Court. 

To 

Whereas,  has  presented  to  said  court  h        petition, 

praying  ,  you  are  hereby  cited  to  appear  at  a  Probate 

Court  to  be  holden  at  ,  in  said  county  of  ,  on  the 

day  of  next,  at  o'clock  in  the  forenoon,  to 

show  cause,  if  any  you  have,  against  the  same. 

And  said  petitioner  is  ordered  to  serve  this  citation 

by  delivering  a  copy  thereof  to  each  of  you  who  may  be  found 
in  said  Commonwealth,  fourteen  days  at  least  before  said 
court,  or  if  any  of  you  shall  not  be  so  found,  either  by  deliver- 
ing a  copy  thereof  to  you  wherever  found,  or  by  leaving  a 
copy  thereof  at  your  usual  place  of  abode,  or  by  mailing  a 
copy  thereof  to  you  at  your  last  known  post-office  address, 
fourteen  days  at  least  before  said  court. 

Witness,  ,  Esq.,  judge  of  said  court,  this  day  of 

,  in  the  year  one  thousand  hundred  and 

Register. 

I  have  served  the  foregoing  citation  by 

ss.  A.  D.  19     . 

Personally   appeared   the   above  named,  ,   and   made 

oath  to  the  truth  of  the  above  returns  by  h  subscribed. 

Before  me, 

Justice  of  the  Peace. 


APPENDIX.  533 

All  processes  shall  be  made  returnable  at  a  statute  court 
day  within  three  months  after  the  date  of  such  process.  In 
any  case  such  further  notice  shall  be  given  as  the  court  may 
order. 

III. 

No  injunction  or  other  proceeding  shall  be  ordered  until  the 
petition  is  filed,  unless  for  good  cause  shown.  No  injunction 
shall  issue,  except  upon  a  petition  which  has  been  sworn  to, 
or  upon  verification  of  the  material  facts  by  affidavit. 

IV. 

The  respondent  shall  answer  fully,  directly,  and  specifically 
to  every  material  allegation  or  statement  in  the  petition. 

V. 

The  day  of  appearance  shall  be  the  return-day  of  the  cita- 
tion, unless  the  court  shall  otherwise  order ;  and  if  the 
respondent  shall  not  appear  and  file  his  answer,  plea,  or 
demurrer  within  fourteen  days  thereafter,  the  petition  shall 
be  taken  for  confessed,  and  the  matter  thereof  may  be 
decreed  accordingly,  unless  good  cause  shall  appear  to  the 
contrary. 

VI. 

The  respondent  may  at  any  time  before  the  citation  is  taken 
for  confessed,  or  afterwards  by  leave  of  the  court,  demur, 
plead,  or  answer  to  the  petition ;  and  he  may  demur  to  part, 
plead  to  part,  and  answer  as  to  the  residue ;  and  in  any  case 
in  which  the  petition  charges  fraud  or  combination,  a  plea  to 
such  part  must  be  accompanied  with  an  answer  supporting  the 
plea,  and  explicitly  denying  the  fraud  or  combination,  and  the 
facts  on  which  the  charge  is  founded. 

VII. 

The  petitioner  may  set  down  a  plea  or  demurrer  to  be  ar- 
gued, or  take  issue  on  the  plea,  within  fourteen  days  from  the 
time  when  the  same  is  filed;  and  if  he  shall  fail  to  do  so,  a 


534  APPENDIX. 

decree  dismissing  the  petition  may  be  entered  upon  motion 
unless  good  cause  appear  to  the  contrary. 

VIII. 

If  a  plea  or  demurrer  be  overruled,  no  other  plea  or  demur- 
rer shall  be  received,  but  the  respondent  shall  proceed  to 
answer  the  petition  ;  and  if  he  shall  fail  to  do  so  within  four- 
teen days,  the  petitioner  may  enter  an  order  that  the  same,  or 
so  much  thereof  as  is  covered  by  the  plea  or  demurrer,  be 
taken  for  confessed,  and  the  matter  may  be  decreed  accord- 
ingly, unless  good  cause  shall  appear  to  the  contrary. 

IX. 

The  respondent,  instead  of  filing  a  formal  plea  or  demurrer, 
may  insist  on  any  special  matter  in  his  answer,  and  have  the 
same  benefit  therefrom  as  if  he  had  pleaded  the  same,  or  de- 
murred to  the  petition. 

X. 

The  respondent  to  a  cross-petition  shall  in  no  case  be  com- 
pelled to  answer  thereto  before  the  respondent  to  the  original 
petition  shall  have  answered  such  original  petition. 

XL 

The  form  of  the  general  replication  shall  be  that  the  plain- 
tiff joins  issue  on  the  answer.  The  petitioner  shall  file  excep- 
tions, or  set  down  the  case  for  hearing  within  fourteen  days 
after  the  answer  is  required  to  be  filed ;  or  if  the  answer  be 
filed  before  it  is  required,  then  within  fourteen  days  after 
written  notice  of  such  filing,  and  if  he  fails  so  to  do,  a  decree 
may  be  entered  for  the  dismissal  of  the  petition. 

XII. 

If  the  petitioner  shall  except  to  an  answer  as  insufficient, 
he  shall  file  his  exceptions,  and  forthwith  give  notice  thereof 
to  the  respondent  or  his  attorney  ;  and  if  within  fourteen 
days  the  respondent  shall  put  in  a  sufficient  answer,  the  same 


APPENDIX.  535 

shall  be  received.  But  if  the  respondent  insist  on  the  suffi- 
ciency of  his  answer,  he  shall,  within  fourteen  days,  file  a 
statement  to  that  effect,  and  give  notice  thereof  to  the  peti- 
tioner, and  thereupon  his  exceptions  shall  be  set  down  to  be 
argued.  If  the  answer  shall  be  adjudged  insufficient,  a  new 
answer  shall  be  filed  within  fourteen  days. 

XIII. 

Upon  a  second  answer  being  adjudged  insufficient,  the  re- 
spondent may  be  examined  upon  interrogatories,  and  com- 
mitted until  he  shall  answer  them. 

XIV. 

The  court  may  in  its  discretion  allow  the  parties  to  amend 
their  pleadings,  and  order  or  permit  the  pleadings  to  be  filed, 
or  any  proceeding  to  be  had,  at  other  times  than  are  provided 
in  these  rules ;  and  may  in  all  cases  impose  just  and  reason- 
able terms  upon  the  parties. 

XV. 

All  notices  in  a  case  required  to  be  given  to  the  party  may 
be  given  to  his  attorney  of  record ;  and  if  transmitted  through 
the  post-office,  post  paid,  shall  be  deemed  to  have  been  re- 
ceived by  the  person  to  whom  they  are  addressed,  in  due 
course  of  mail,  unless  the  contrary  shall  appear  by  affidavit  or 
otherwise. 

XVI. 

When  the  death  of  any  party  shall  be  suggested  in  writing, 
and  entered  on  the  docket,  the  register,  upon  application,  may 
issue  process  to  bring  into  court  the  representative  of  such 
deceased  party. 

XVII. 

When  the  circumstances  of  the  case  are  such  as  to  require  a 
petition  of  revivor  or  supplemental  petition,  or  petition  in  the 
nature  of  either  or  both,  or  the  joinder  of  additional  or  differ- 
ent parties,  the  requisite  allegations  may  be  made  by  way  of 


536  APPENDIX. 

amendment  to  the  original  petition  ;  and  after  service  on  any 
new  parties,  as  in  the  case  of  an  original  petition,  and  service 
of  copies  of  the  amendment  on  all  the  respondents  affected 
thereby,  shall  entitle  the  petitioner  to  proceed  as  on  an  original 
petition. 

XVIIL 

In  petitions  by  executors  or  trustees  to  obtain  the  instruc- 
tions of  the  court,  and  in  petitions  of  interpleader,  or  in  the 
nature  of  interpleader,  no  attorney  for  the  petitioner  shall 
appear,  or  be  heard,  or  act  for  or  in  behalf  of  any  or  either 
of  the  respondents. 

XIX. 

All  facts  alleged  in  a  petition,  other  than  for  discovery 
only,  which  are  not  denied  or  put  in  issue  by  the  answer, 
shall  be  deemed  to  be  admitted. 

XX. 

Testimony  taken  by  depositions  shall  be  taken  in  the  man- 
ner required  by  statute  and  by  the  rules  of  the  court  in 
matters  of  probate, 

XXI. 

When  any  matter  shall  be  referred  to  a  master,  he  shall, 
upon  the  application  of  either  party,  assign  a  time  and  place 
for  hearing,  which  shall  not  be  less  than  ten  days  thereafter ; 
and  the  party  obtaining  the  reference  shall  serve  the  adverse 
party,  at  least  seven  days  before  the  time  appointed  for  the 
hearing,  with  a  summons  requiring  his  attendance  at  such 
time  and  place,  and  make  proof  thereof  to  the  master ;  and 
thereupon,  if  the  party  summoned  shall  not  appear  to  show 
cause  to  the  contrary,  the  master  may  proceed  ex  pra'te  ;  and 
if  the  party  obtaining  the  reference  shall  not  appear  at  the 
time  and  place,  or  show  cause  why  he  does  not,  the  master 
may  either  proceed  ex  jjarfe,  or  the  party  obtaining  the  refer- 
ence shall  lose  the  benefit  of  the  same  at  the  election  of  the 
adverse  party. 


APPENDIX.  i^37 


XXIL 


When  the  master  has  prepared  a  draft  copy  of  his  report, 
he  shall  notify  the  parties,  or  their  attorneys,  of  the  time  and 
place  when  and  where  they  may  attend  to  hear  the  same,  and 
suggest  such  alterations,  if  any,  as  they  may  think  proper. 
Upon  consideration  whereof,  the  master  will  finally  settle  the 
draft  of  his  report,  and  give  notice  thereof  to  the  parties  or 
their  attorneys,  whereupon,  after  examining  the  same,  or 
being  furnished  with  a  copy  thereof,  five  days  shall  be  al- 
lowed for  bringing  in  written  objections  thereto,  which  objec- 
tions, if  any,  shall  be  appended  to  the  report.  No  exception 
to  a  master's  report  will  be  allowed  without  a  special  order 
of  the  court,  unless  founded  upon  an  objection  made  before 
the  master,  and  shown  by  his  report,  and  unless  filed  with  the 
register  within  fourteen  days  from  the  filing  of  the  report. 
Notice  of  the  filing  of  the  master's  report  shall  be  forthwith 
sent  by  the  register  to  each  party  or  his  attorney. 

XXIII. 

When  exceptions  shall  be  taken  to  the  report  of  the  master, 
they  shall  be  filed  with  the  register,  and  notice  thereof  shall 
forthwith  be  given  to  the  adverse  party ;  and  the  exceptions 
shall  then  be  set  down  for  argument.  In  every  case,  the  ex- 
ceptions shall  briefly  and  clearly  specify  the  matter  excepted 
to,  and  the  cause  thereof;  and  the  exceptions  shall  not  be 
valid  as  to  any  matter  not  so  specified. 

XXIV. 

When  any  party  shall  desire  a  hearing  in  equity,  he  may 
apply  to  the  judge  to  appoint  a  time  and  place  therefor ;  and 
when  such  time  and  place  shall  have  been  appointed,  he  shall 
give  notice  thereof  to  the  adverse  party,  or  his  attorney, 
through  the  post-office,  post  paid ;  but  this  rule  shall  not  pre- 
vent a  party  from  obtaining  a  preliminary  injunction,  or  a  dis- 
solution of  an  injunction  or  other  order,  upon  a  shorter  notice, 


538  APPENDIX. 

or  without  notice,  if  the  court  shall  think  the  same  reasonable. 
Cases  may  be  heard  by  consent  of  parties,  and  the  permission 
of  the  court,  without  such  notice. 

XXV. 

The  attorney  of  the  party  in  whose  favor  a  decree  or  order  is 
passed  shall  draw  the  same.  All  pleadings  shall  be  recorded, 
unless  the  court  shall  otherwise  order. 


(Form  of  Decree.) 

ss. 

On   the   petition   in   equity   of  ,   petitioners,    against 

,  respondents,  praying  it  appearing  that  notice 

according  to  the  order  of  the  court  has  been  given  all  parties 
interested  person  objecting  after  hearing  and  considera- 

tion, the  court  doth  order  and  decree, 

XXVI. 

Rules  I.,  II.,  and  III.  in  Probate  shall  apply  to  proceedings 
in  equity. 


PROBATE   FORMS. 

Petition  for  Administration  —  with  Sureties. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 

Respectfully   represents  ,    of  ,    in   said    County 

,    that  ,    who   last   dwelt   in    said  ,    died 

on  the  day  of  ,  in  the  year  of  our  Lord  one  thou- 

sand   nine    hundred    and  intestate,    possessed    of 

goods   and  estate  remaining  to  be  administered,  leaving 

as  widow  —  husband,  h  only  heirs-at-law  and  next  of  kin  the 
persons  whose  names,  residences,  and  relationship  to  the  de- 
ceased are  as  follows,  viz. : 

Name.  Residbncb.  Relationship. 

that  your  petitioner  is 

Wherefore  your  petitioner  prays  that  he,  or  some  other  suita- 
ble person,  be  appointed  administrat  of  the  estate  of  said 
deceased,  and  certifies  that  the  statements  herein  contained  are 
true  to  the  best  of  h     knowledge  and  belief. 
Dated  this             day  of            ,  A.  d.  19     . 

,  ss.  Subscribed  and  sworn  to  this  day  of 

,  A.  D.  19     . 

Before  me, 

Justice  of  the  Peace. 

The  undersigned,  being  all  the  persons  interested  residing  in 
the  Commonwealth,  who  are  of  full  age  and  legal  capacity, 
hereby  assent  to  the  foregoing  petition. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  a  copy 
of  citation  to  each  of  next  of  kin  seveu  days  at  least  before  return  day. 


540  APPENDIX. 


Petition  for  Administration  —  without  Sureties. 

To  tlie  Honorable  tlie  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully   represents  ,   of  ,    in   the   County 

of  ,    that  ,   who   last   dwelt   in    said  , 

died  on  the  day  of  ,   in  the  year  of  our  Lord  one 

thousand  nine  hundred  and  ,   intestate,  possessed  of 

goods  and  estate  remaining  to  be  administered,  leaving  as 

widow  —  husband,  h  only  heirs-at-law  and  next  of  kin  the 
persons  whose  names,  residences,  and  relationship  to  the  de- 
ceased are  as  follows,  viz. : 

Name.  Residence.  Relationship. 

that  your  petitioner  is 

Wherefore  your  petitioner  prays  that  he  may  be  appointed 
administrat  of  the  estate  of  said  deceased  without  giving  a 
surety  on  h  bond,  and  certifies  that  the  statements  herein  con- 
tained are  true  to  the  best  of  h      knowledge  and  belief. 

Dated  this  day  of  ,  a.  d.  19     . 

,  ss.  Subscribed  and  sworn  to  this  day  of 

,  A.  D.    19      . 

Before  me, 

Justice  of  the  Peace. 

The  undersigned,  being  all  the  persons  interested  in  the 
estate,  who  are  of  full  age  and  legal  capacity,  other  than  cred- 
itors, and  the  guardians  of  persons  interested  therein,  hereby 
consent  that  the  above-named  petitioner  be  exempt  from  giving 
any  surety  on  h      bond. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


PROBATE    FORMS.  541 

Petition  for  Administration  De  Bonis  Xon. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 

the  County  of 

Respectfully   represents  ,    of  ,    iu    the    County 

of  ,    that   on    the  day  of  ,    A.  d.    19     , 

was    appointed,    by    this    Court,    administrat         of    the 

estate    of  ,    late    of    said  ,    deceased;    that    the 

said  has  without    having   fully    administered  said 

estate,  that  there  are  goods  and  estate  of  the  said  to  the 

amount  of  twenty  dollars  remaining  to  be  administered; 

that  your  petitioner  is 

Wherefore  yoxxv  petitioner  prays  that  he,  or  some  other  suit- 
able person,  be  appointed  administrat  of  the  estate,  not 
already    administered,    of    said  ,    and    certifies    that    the 

statements  herein  contained  are  true  to  the  best  of  h  knowl- 
edge and  belief. 

Dated  this  day  of  ,  A.  d.  19     . 

,   ss.  Subscribed  and  sworn  to  this  day  of 

,  A.  D.  19      . 

Before  me, 

Justice  of  the  Peace. 

The  undersigned,  being  all  persons  interested,  hereby  assent 
to  the  foregoing  petition. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


Petition  for  Special  Administration. 

[R.  L.  c.  137,  §9.] 
[Notice  may  be  ordered  at  the  discretion  of  the  Court.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully   represents  ,    oi  ,   in  said  County, 


542  APPENDIX. 

that  ,  who  last  dwelt  in  said  ,  died  on 

the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and  ,  possessed  of  goods   and  estate 

remaining  to  be  administered,  and  that  there  is  delay  in  grant- 
ing letters  on  h      estate,  by  reason  of 

and  that  your  petitioner  is 

Wherefore    your   petitioner    pray    that    he  may  be   ap- 

pointed special  administrat  of  the  estate  of  said  deceased; 
and  may  be  authorized  to  take  charge  of  all  the  real  estate  of 
paid   deceased,  and   to  collect   rents  and   make   necessary 

repairs,  and  certifies  that  the  statements  herein  contained  are 
true  to  the  best  of  h       knowledge  and  belief. 

Dated  this  day  of  ,  A.  d,  19     . 

,  ss.  Subscribed  and  sworn  to  this  day  of 

,  A.  D.   19      . 

Before  me, 

Justice  of  the  Peace. 

The  undersigned,   being  all  the  persons   interested,   hereby 
assent  to  the  foregoing  petition. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


Petition  for  Public  Administration. 

To  the  Honorable  the  'Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfulls'    represents  of  ,    in    the    County 

of  ,    public    administrator    in    and    for   the    County    of 

,    that  died    intestate,    in  ,    in    said    County 

of  ,    on   the  day   of  ,    A.   d.    19     ,    not 

leaving   a   known    husband  —  widow  —  or    heir    in    this   Com- 
monwealth, that  said  deceased  left  property  in  said  County  of 
,  to  be  administered, 

that  your  petitioner  is  entitled  to  administer  thereon] 


PROBATE    FORMS.  543 

Wherefore  he  prays  tliat  letters  of  admiuistratiou  on  tlie 
estate  of  said  deceased  may  be  granted  to  him  agreeably  to  the 
law  in  such  cases  made  and  provided,  and  certifies  that  the  state- 
mehts  herein  contained  are  true  to  the  best  of  his  knowledge 
and  belief. 

Dated  this  day  of  ,  a,  d.  19     . 

,  ss.  Subscribed   and   sworn   to   this  day    of 

,  A.  D.  19     . 

Before  me, 

Justice  of  the  Peace. 

Citatiou  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


Petition  for  Probate  of  Will  —  with  Sureties. 

[Minors  must  be  so  designated,  and  the  names  of  their  guardians,  if  any,  given.  The 
heirs-at-law  and  next-of-kin  may  be  determined  by  reference  to  Chapters  133  and  137  of  the 
Revised  Laws.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully   represents  of  ,    in   the  County 

of  ,    that  ,  who   last  dwelt    in    said  , 

died  on  the  day  of  ,  in  the  year  of  our  Lord  one 

thousand    nine   hundred   and  ,    possessed   of    goods 

and  estate  remaining  to  be  administered,  leaving  as  widow  — 
husband  —  h  only  heirs-at-law  and  next  of  kin,  the  persons 
whose  names,  residences,  and  relationship  to  the  deceased  are 
as  follows,  viz. : 

Name.  Residence.  Relationship. 

That  said  deceased  left  a  will  — and  codicil  —  herewith 

presented,  wherein  your  petitioner  named  execut 

Wherefore  your  petitioner  pray  that  said  will  —  and  codicil 
—  may  be  proved  and  allowed  and  letters  testamentary  issued 


544  APPENDIX. 

to     h     ,  and  certifies  that  the  statements  herein  contained  are 
true  to  the  best  of     h      knowledge  and  belief. 
Dated  this  day  of  ,  A.  d.  19     . 

,    ss.  Subscribed  and   sworn   to  this  day  of 

,  A.  D.  19      . 

Before  me, 

Justice  of  the  Peace. 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  publication  once  a  weeic  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  post-paid, 
or  delivering  a  copy  of  the  citation  to  all  known  persons  interested  in  the 
estate  seven  days  at  least  before  return  day. 


Petition  for  Probate  of  Will  —  without  Sureties. 

[Minors  must  be  so  designated,  and  the  names  of  their  guardians,  if  any,  given.  Th« 
heirs-at-law  and  next-of-kin  may  be  determined  by  reference  to  Chapters  133  and  137  of  the 
Revised  Laws.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully  represents  of  in  the  County  of  , 

that  ,  who  last  dwelt  in  said  ,  died  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and  ,  possessed  of  goods  and  estate  remain- 

ing  to   be   administered,   leaving    as   widow  —  husband  —  h 
only   heirs-at-law  and  next  of   kin,   the  persons  whose  names, 
residences,  and  relationship  to  the  deceased  are  as  follows,  viz. : 

Name.  Residence.  Relationship. 

That  said  deceased  left  a  will  —  and  codicil  —  herewith 

presented,  wherein  your  petitioner  named  execut     ,  and 

wherein  the  testat         has  requested  that  your  petitioner    be  ex- 
empt from  giving  a  surety  on     h      bond. 


PROBATE    FORMS.  545 

Wherefore  your  petitioner  pray  that  said  will  —  and  codicil 
—  may  be  proved  and  allowed  and  letters  testamentary  issued 
to  h  ,  without  giving  a  surety  on  h  official  bond  ,  and  certi- 
fies that  the  statements  herein  contained  are  true  to  the  best  of 
h      knowledge  and  belief. 

Dated  this  day  of  ,  A.  d.  19     . 

,    ss.  Subscribed    and    sworn   to   this  day   of 

,  A.  D.  19     . 

Before  me, 

Justice  of  the  Peace. 

The  undersigned,  being  all  the  persons  interested  in  the 
estate  who  are  of  full  age  and  legal  capacity,  other  than  credit- 
ors, and  the  guardians  of  persons  interested  therein,  hereby 
consent  that  the  above-named  petitioner  be  exempt  from  giving 
any  surety  on    h      bond. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  post-paid; 
or  delivering  a  copy  of  the  citation  to  all  known  persons  interested  in  the 
estate  seven  days  at  least  before  return  day. 


Petition  for  Allowance  op  Foreign  Will  and  Letters. 

[R.  L.  c.  136,  §§  10,  11,  12.] 
[The  petitioner  should  state  that  he  is  Executor,  if  he  is  so,  and  if  not,  how  he  is  interested.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully  represents  of  in  the  County  of  , 

and  State  of  ,  that  the  last  will  and  testament  of  , 

late  of  ,  in  the  County  of  ,  and  State  of  ,  de- 

ceased, testate,  has  been  duly  proved  and  allowed  by  the 
Court  in  and  for  the  ,  according  to  the  laws  of  said  State 

of  ,  a  copy  of  which  will,  and  of  the  probate  thereof,  duly 

authenticated,  are  herewith  produced;  that  said  testat      at  the 
time  of   his  decease  had  estate  in  said  County  of  ,  on 

which  said  will  may  operate ;  that  the  same  ought  to  be  allowed 

36 


546  APPENDIX. 

in  this  State  as  the  last  will  and  testament  of  said  deceased; 
that  your  petitioner  is  the  execut      therein  named, 

and  therefore  pray  ,  that  the  copy  of  said  will  may  be  filed  and 
recorded  in  the  Registry  of  Probate  in  said  County  of  , 

pursuant  to  the  statute   in  that  case  made  and  provided;  and 
that  letters  testamentary  may  be  granted  thereon  to  h       , 

and  certifies  that  the  statements  made  in  the  foregoing  petition 
are  true  to  the  best  of  his  knowledge  and  belief. 
Dated  this  day  of  ,  A.  d.  19     . 

,  ss.  Subscribed  and  sworn  to   this  day  ot 

,  A.  D.    19      . 

Before  me, 

Justice  of  the  Peace. 

Citation  by  publication  once  a  week  for  tliree  successive  weeks,  the  first 
publication  to  be  thirty  days  at  least  before  return  day. 


Petition  for  Administration  with  the  Will  Annexed. 

[Minors  must  be  so  designated,  and  the  names  of  their  guardians,  if  any,  given.  The 
heirs-at-law  and  next-of-kin  may  be  determined  by  reference  to  Chapters  133  and  137  of  the 
Revised  Laws. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully   represents  ,  of  ,    in   the   County 

of  ,   that  ,    who   last   dwelt   in  ,  in 

said  County  of  ,  died   on  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and  , 

possessed  of  goods  and  estate  remaining  to  be  administered, 
leaving  as  widow  —  husband  —  h  only  heirs-at-law  and  next 
of  kin,  the  persons  whose  names,  residences,  and  relationship  to 
the  deceased  are  as  follows,  viz. : 

Name.  Residence.  Relationship. 

That  said  deceased  left  a  will  —  and  codicil  —  herewith 
presented,  wherein  w        named  execut        and  has 


PROBATE    FORMS.  547 

Whei'efore  your  petitioner  pray  tliiit  said  will — and  codicil 
—  may  be  proved  and  allowed,  and  letters  of  administration 
with  the  will  annexed,  'issued  to  h  ,  or  some  other  suitable 
person,  and  certifies  that  the  statements  herein  contained  are 
true  to  the  best  of    h       knowledge  and  belief. 

Dated  this  day  of  ,  a.  d.  19     . 

,  ss.  Subscribed  and  sworn  to  this  day  of 

,  A.  D.   19       . 

Before  me, 

Justice  of  the  Peace. 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  post-paid, 
or  delivering  a  copy  of  the  citation  to  all  known  persons  interested  in  the 
estate  seven  days  at  least  before  return  day. 


Petition  for  Administration  De  Bonis  Non  with  the 
Will  Annexed. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  Count]]  of 

Respectfully  represents  of  in  the  County  of  , 

that   the    will    of  ,  late  of  ,    in   said    County   of 

,    deceased,    was    duly   proA^ed   and   allowed   on    the 

day  of  ,  a.  d.  19     ,  in  said  Court,  and  that 

appointed  execut       thereof,  and  that  said  execut       has 

without  having  fully  executed  said  will 

and  that  your  petitioner    is 

Wherefore  your  petitioner  pray  that  he,  or  some  other  suit- 
able person,  be  appointed  administrat  with  the  will  annexed 
of  the  estate  of  said  deceased  not  already  administered,  and 


548  APPENDIX. 

certifies  that  the  statements  herein  contained  are  true  to  the 
best  of    h      knowledge  and  belief. 

Dated  this  day  of  ,  A.  d.  19     . 

,  ss.  Subscribed   and   sworn  to  this  day   of 

,  A.  D.  19     . 

Before  me, 

Justice  of  the  Peace. 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  post-paid, 
or  delivering  a  copy  of  the  citation  to  all  devisees  and  legatees  named  iu  the 
will  seveu  days  before  return  day. 


Administrator's  Bond  —  "without  Sureties. 

[R.  L.  c.  149,  §  1,   cl.  2,  §  3.] 

Know  all  Men  by  these  Presents, 

That  I,  ,  of  in  the  County  of  .  ,  in  the  Com- 

monwealth of  Massachusetts,  am  holden  and  stand  firmly  bound 
and  obliged  unto  ,  Esquire,  Judge  of  the  Probate  Court 

in  and  for  the  County  of  ,  in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  Judge  and  his  successors  in 
said  office  ;  to  the  true  payment  whereof  I  bind  myself  and  my 
heirs,  executors,  and  administrators  by  these  presents.  Sealed 
with  my  seal,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  administrat  of  the  estate  of  , 

late  of  ,    in   said   County  of  ,    deceased,   intestate, 

shall, 

First,  make  and  return  to  said  Probate  Court,  within  three 


PROBATE    FORMS.  549 

months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  administrat  j 

Second,  administer  according  to  law  all  the  personal  estate  of 
said  deceased  which  may  come  to  the  possession  of  said  admin- 
istrat ,  or  of  any  person  for  h  ,  and  also  the  proceeds  of  any 
of  the  real  estate  of  said  deceased  that  may  be  sold  or  mortgaged 
by  said  administrat        ; 

Third,  render  upon  oath  a  true  account  of  h  administration 
at  least  once  a  year,  until  h  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order; 

Fourth,  pay  to  such  persons  as  said  Court  may  direct  any 
balance  remaining  in  h      hands  upon   the  settlement  of  h 
accounts;  and 

Fifth,  deliver  h  letters  of  administration  into  said  Court 
in  case  any  will  of  said  deceased  is  hereafter  duly  proved  and 
allowed. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

,  ss.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of 
the  within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Keal  Estate,         I 

Personal  Estate,  % 

[sign] 


550  APPENDIX. 

Administrator's  Bond  De  Bonis  Non — with  Sureties. 

[R.  L.  c.  149,  §  1.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  in    the  County  of  ,  as   princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly   bound  and  obliged  unto  ,  Esquire,  Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office  ;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  tlie 
above-bounden  ,  administrat         of  the  estate  not  already 

administered  of  ,  late  of  said  ,  deceased,  intestate, 

shall, 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  administrat  ; 

Second,  administer  according  to  law  all  the  personal  estate  of 
said  deceased  which  may  come  to  the  possession  of  said  admin- 
istrat ,  or  of  any  person  for  h  ,  and  also  the  proceeds  of  any 
of  the  real  estate  of  said  deceased  that  may  be  sold  or  mortgaged 
by  said  administrat        ; 

Third,  render  upon  oath  a  true  account  of  h  administration 
at  least  once  a  year,  until  h  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order; 

Fourth,  pay  to  such  persons  as  said  Court  may  direct   any 
balance  remaining  in  h       hands   upon   the  settlement  of  h 
accounts;  and 


PROBATE   FORMS.  551 

Fifth,  deliver  h  letters  of  administration  into  said  Court 
in  case  any  will  of  said  deceased  is  hereafter  duly  proved  and 
allowed. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


ss.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of 
the  within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Real  Estate,         $ 

Personal  Estate,  % 

[sign] 


Administrator's  Bond  De  Bonis  Non  —  without  Sureties. 

[R.  L.  c.  149,  §§  1,  8.] 

Know  all  Men  by  these  Presents, 

That  I,  ,  of  ,  in  the  County  of  ,  in  the  Com- 

monwealth of  Massachusetts,  am  holden  and  stand  firmly  bound 
and  obliged  unto  ,  Esquire,  Judge  of  the  Probate  Court 

in  and  for  the  County  of  ,   in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  Judge  and  his  successors  in 
said  office;  to  the  true  payment  whereof  I  bind  myself  and  my 
heirs,  executors,  and  administrators  by  these  presents.  Sealed 
with  my  seal,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that   if   the 
above-bounden  ,  administrat        of  the  estate  not  already 


552  APPENDIX. 

administered  of  ,  late  of  said  ,  deceased,  intestate, 

shall. 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  administrat  ; 

Second,  administer  according  to  law  all  the  personal  estate  of 
said  deceased  which  may  come  to  the  possession  of  said  admin- 
istrat ,  or  of  any  person  for  h  ,  and  also  the  pi'oceeds  of  any 
of  the  real  estate  of  said  deceased  that  may  be  sold  or  mortgaged 
by  said  administrat        ; 

Third,  render  upon  oath  a  true  account  of  h  administration 
at  least  once  a  year  until  h  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order; 

Fourth,  pay  to  such   persons  as  said  Court   may  direct  any 
balance   remaining  in  h      hands  upon  the  settlement  of  h 
accounts;  and 

Fifth,  deliver  h  letters  of  administration  into  said  Court 
in  case  any  will  of  said  deceased  is  hereafter  duly  proved  and 
allowed. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

8S.  19     .     Examined  and  approved. 

Judge  oj  Probate  Court. 

T,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of 
the  within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Keal  Estate,         % 
Personal  Estate,  $  . 

[sign] 


PROBATE   FORMS.  553 

Special  Administrator's  Bond. 

[R.  L.  c.  149,  §  1.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and  obliged  unto  ,  Esquire,   Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  the  said  Judge  and  his 

successors  in  said  office  ;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointl}'  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,    special   administrat         of   the  estate   of 

,  late  of  said  ,  deceased,  shall 

Make  and  return  to  said  Probate  Court,  within  three  months 
after  h  appointment,  said  Court  having  so  ordered,  a  true 
inventory  of  all  the  personal  estate  of  said  deceased  which  at 
tlie  time  of  the  making  of  such   inventory  shall  have  come  to 

h  possession  or  knowledge;    and,    whenever    required   by 

said  Court,  truly  account,  on  oath,  for  all  the  estate  of  said 
deceased  that  may  be  received  bj'-  h  as  such  special  admin- 
istrat ,  and  deliver  the  same  to  any  person  who  mny  be 
appointed  execut  or  administrat  of  said  deceased,  or  may 
be  otherwise  lawfully  authorized  to  receive  the  same. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


88.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 


554  APPENDIX. 

I,  ,  the  withiii-iianied  admiiiistrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of 
the  within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Real  Estate,         $ 
Personal  Estate,  $  . 

[sign] 


Public  Administrator's  Bond. 

[R.  L.  c.  138,  §§  6,  7.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and  obliged  unto  ,  Esquire,  Judge  of   the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office ;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,    public    administrator    in    and   for    said 

County  of  ,  administrator  of  the  estate  of  ,  late  of 

,  in  said  County  of  ,  deceased,  intestate,  shall 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  his  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  administrator; 

Second,  administer  according  to  law  all  the  personal  estate  of 
said  deceased  which  may  come  to  the  possession  of  said  admin- 


PKOBATE    FORMS.  5 JO 

istrator,  or  of  any  ])erson  for  hi  in,  and  also  the  proceeds  of  any 
of  the  x'eal  estate  of  said  deceased  that  may  be  sold  or  mortgaged 
by  him; 

Third,  render  upon  oath  a  true  account  of  his  administration 
at  least  once  a  year  until  his  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order; 

Fourth,  pay  the  balance  of  said  estate  remaining  in  his  hands 
upon  the  settlement  of  his  accounts  to  such  persons  as  said 
Court  may  direct;  and,  when  said  estate  has  been  fully  admin- 
istered, to  deposit  with  the  Treasurer  of  the  Commonwealth  the 
whole  amount  remaining  in  his  hands; 

Fifth,  upon  the  appointment  and  qualification  in  any  case  of 
an  executor  or  administrator  as  his  successor,  to  surrender  into 
said  Court  said  letters  of  administration,  with  an  account  under 
oath  of  his  doings  therein ;  and,  upon  a  just  settlement  of  such 
account,  to  pay  over  and  deliver  to  such  successor  all  sums  of 
money  remaining  in  his  hands,  and  all  property,  effects,  and 
credits  of  said  deceased  not  then  administered. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Sigued,  sealed,  and  delivered         '\  [SEAL.  J 

iu  presence  of  C  [sEAL.] 

)  [seal.] 

8s.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of 
the  within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Peal  Estate,  $ 

Personal  Estate,  $  . 

[sign] 


556  APPENDIX. 


Executor's  Bond  —  with  Sureties. 

[R.  L.  c.  149,  §  1.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holdeu  and  stand 
firmly  bound  and  obliged  unto  ,  Esquire,  Judge  of   the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  execut         of  the  last  will  and  testament 

of  ,  late  of  said  ,  deceased,  testate,  shall  :  — 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  execut  ; 

Second^  administer  according  to  law  and  to  the  will  of  said 
deceased  all  the  personal  estate  of  said  deceased  which  may 
come  to  the  possession  of  said  execut  ,  or  of  any  person  for 
h  ,  and  also  the  proceeds  of  any  of  the  real  estate  of  said 
deceased  that  may  be  sold  or  mortgaged  by  said  execut  ; 
and 

Third,  render  upon  oath  a  true  account  of  h  administration 
at  least  once  a  year  until  h  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order. 


PROBATE    FORMS.  557 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


88.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  execut         ,  declare  that,  to  the 

best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 
within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Real  Estate,  % 

Personal  Estate,  $ 

[sign] 


Executor's  Bond  —  without  Sureties. 

[R.  L.  c.  149,  §  3.] 

Know  all  Men  by  these  Presents, 

That  I,  ,  of  ,  in  the  County  of  ,  in  the  Com- 

monwealth of  Massachusetts,  am  holden  and  stand  firmly  bound 
and  obliged  unto  ,  Esquire,  Judge  of  the  Probate  Court 

in  and  for  the  County  of  ,  in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  Judge  and  his  successors  in 
said  office ;  to  the  true  payment  whereof  I  bind  myself  and  my 
heirs,  executors,  and  administrators  by  these  presents.  Sealed 
with  my  seal,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

The  condition  ok  this  obligation  is  such,  that  if  the 
above-bounden  ,  execut         of  the  last  will  and  testament 

of  ,  late  of  said  ,  deceased,  testate,  shall, 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 


558  APPENDIX. 

making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  execut  ; 

Second,  administer  according  to  law  and  to  the  will  of  said 
deceased  all  the  personal  estate  of  said  deceased  which  may 
come  to  the  possession  of  said  execut  ,  or  of  any  person  for 
h  ,  and  also  the  proceeds  of  any  of  the  real  estate  of  said 
deceased  that  may  be  sold  or  mortgaged  by  said  execut  j 
and 

Thli'd,  render  upon  oath  a  true  account  of  h  administration 
at  least  once  a  year,  until  h  trust  is  fulfilled,  unless  h  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order, 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Prohate  Court. 

I,  ,  the  within-named  execut         ,  declare  that,  to  the 

best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 
within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz.  : 

Real  Estate,         % 

Personal  Estate,  % 

[sign] 


Executor's  Bond  to  pay  Debts  and  Legacies  —  Residuary. 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,   and  all  within 

the   Commonwealth   of   Massachusetts,    are   holden   and   stand 
firmly  bound  and  obliged  unto  ,   Esquire,  Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 


PROBATE   FORMS.  559 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  execut         of  the  last  will  and  testament 

of  ,    late   of  ,  in  said  County  of  ,   deceased, 

testate,  being  residuary  legatee  in  said  will,  shall  pay  all 
debts  and  legacies  of  said  deceased,  and  such  sums  as  may  be 
allowed  by  said  Probate  Court  for  necessaries  to  the  widow 
and  minor  children  of  said  deceased, 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  execut         ,  declare  that,  to  the 

best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 
within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz.  : 

Real  Estate,  % 

Personal  Estate,  % 

[sign] 


Administrator's  Bond  —  Will  Annexed  —  with  Sureties. 

[R.  L.  c.  149,  §  1.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 


560  APPENDIX. 

tlie  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and  obliged  unto  ,  Esquire,   Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office;  to  the  true  payment  whereof  we  bind 
ourseh'es  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  ninety- 

The  condition  of  this  OBLirjATiON  IS  SUCH,  that  if  the 
above-bounden  ,  administrat         ,  with  the  will  annexed, 

of   the   estate  ,    of  ,   late  of   said  ,    deceased, 

testate,  shall. 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  administrat  ; 

Second,  administer  according  to  law  and  to  the  will  of  said 
deceased  all  the  personal  estate  of  said  deceased  which  may 
come  to  the  possession  of  said  administrat  ,  or  of  any  person 
for  h  ,  and  also  the  proceeds  of  any  of  the  real  estate  of  said 
deceased  that  may  be  sold  or  mortgaged  by  said  administrat  ; 
and 

Third,  render  upon  oath  a  true  account  of  h  administration 
at  least  once  a  year,  until  h  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Signed,  sealed,  and  delivered         ( 
in  presence  of  j 


ss.  A.  D.  19     .     Examined  and  approved. 

Jxidge  of  Probate  Court. 

I,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of 


PROBATE    FORMS.  561 

the  within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz.  : 

Real  Estate,  $ 

Personal  Estate,  $ 
[sign] 


Administrator's    Bond  —  Will    Annexed  —  without 
Sureties. 

[E.  L.  c.  149,  §§  1,  3.] 

Know  all  Men  by  these  Presents, 

That  I,  ,  of  ,  in  the  County  of  ,  in  the  Com- 

monwealth of  Massachusetts,  am  holden  and  stand  firmly  bound 
and  obliged  unto  ,  Esquire,  Judge  of  the  Probate  Court 

in  and  for  the  County  of  ,   in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  Judge  and  his  successors  in 
said  office ;  to  the  true  payment  whereof  I  bind  myself  and  my 
heirs,  executors,  and  administrators  by  these  presents.  Sealed 
with  my  seal,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  admiuistrat         ,  with  the  will  annexed, 

of  the  estate  ,  of  ,  late  of  ,  in  said  County  of 

,  deceased,  testate,  shall, 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  administrat  ; 

Second,  administer  according  to  law  and  to  the  will  of  said 
deceased  all  the  personal  estate  of  said  deceased  which  may 
come  to  the  possession  of  said  administrat  ,  or  of  an}'  person 
for  h  ,  and  also  the  proceeds  of  any  of  the  real  estate  of  said 
deceased  that  may  be  sold  or  mortgaged  by  said  administrat  ; 
and 

Third,  render  upon  oath  a  true  account  of  h      administration 

36 


562  APPENDIX. 

at  least  once  a  yeai',  until  h  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Sigued,  sealed,  and  delivered 
in  presence  of 


8S.  A.  D.  19     .     Examined  and  approved. 

Judye  of  Frobate  Court. 

I,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of 
the  within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Real  Estate,         S 
Personal  Estate,  $  . 

[sign] 


Administrator's  Bond  —  Will  Annexed  De  Bonis  Non  — 
WITH  Sureties. 

[R.  L.  c.  149,§1.1 

Know  all  Men  by  these  Presents, 

That  we,  ,   of,  in  the  County  of  ,  as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as   sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and   obliged  unto  ,   Esquire,   Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,    by  these  presents. 


PROBATE    FORMS.  563 

Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  ninety- 

The  condition  of  this  obligation  is  such,  that  if  the 
ahove-hounden  ,  adniinistrat         ,  with  tlie  will  annexed, 

of  the  estate  not  already  administered,  ,  of  ,  late  of 

said  ,  deceased,  testate,  shall, 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  adniinistrat  ; 

Second,  administer  according  to  law  and  to  the  will  of  said 
deceased  all  the  personal  estate  of  said  deceased  not  already 
administered  which  may  come  to  the  possession  of  said  admin- 
istrat  ,  or  of  any  person  for  h  ,  and  also  the  proceeds  of 
any  of  the  real  estate  of  said  deceased  that  may  be  sold  or  mort- 
gaged by  said  administrat  ;  and 

Third,  render  upon  oath  a  true  account  of  h  administration 
at  least  once  a  year,  until  h  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


ss.  A.  D.  19     .     Examined  and  approved. 

Judfje  of  Probate  Court. 

I,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of 
the  within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Eeal  Estate,         S 

Personal  Estate,  $ 

[sign] 


564  APPENDIX. 


Guardian's  Bond  —  with  Sureties. 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound   and  obliged  unto  ,   Esquire,    Judge   of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-boundeu  ,    guardian    of  j    of  ,    in   said 

County  of  ,   minor     ,   shall, 

First,  make  and  return  to  said  Probate  Court,  at  such  time 
as  it  may  order,  a  true  inventory  of  all  the  real  and  personal 
estate  of  said  ward  that  at  the  time  of  the  making  of  such 
inventory  shall  have  come  to  the  possession  or  knowledge  of  said 
guardian; 

Second,  manage  and  dispose  of  all  such  estate  according  to 
/aw  and  for  the  best  interests  of  said  ward,  and  faithfully  dis- 
charge h  trust  in  relation  to  such  estate,  and  to  the  custody, 
education,  and  maintenance  of  said  ward     ; 

Third,  render  upon  oath  at  least  once  a  year,  until  h  trust 
is  fulfilled,  unless  h  is  excused  therefrom  in  any  year  by  said 
Court,  a  true  account  of  the  property  in  h  hands,  including 
the  proceeds  of  all  real  estate  sold  or  mortgaged  by  h  ,  and  of 
the  management  and  disposition  thereof,  and  also  render  such 
account  at  such  other  times  as  said  Court  may  order;  and 

Fourth,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  or  with  said  ward,  or  h  legal  representatives,  and 
pay  over  and  deliver  all  the  estate  remaining  in  h      hands,  or 


PROBATE   FORMS.  565 

due  from  h      on  such  settlement,  to  the  person  or  persons  law- 
fully entitled  thereto; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Frobate  Court. 

I,  ,   the  within-named  guardian,   declare  that,    to  the 

best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 
within-named  ward  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Real  Estate,  $ 

Personal  Estate,  $  . 

[sign] 


Guardian's  Bond  —  without  Sureties. 

[B.  L.  c.  149,  §§  1,  4,  5,  6.] 

Know  all  Men  by  these  Presents, 

That  I,  ,  of  ,  in  the  County  of  ,  in  the  Com- 

monwealth of  Massachusetts,  am  holden  and  stand  firmly  bound 
and  obliged  unto  ,  Esquire,  Judge  of  the  Probate  Court 

in  and  for  the  County  of  ,  in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  Judge  and  his  successors  in 
said  office ;  to  the  true  payment  whereof  I  bind  myself  and  my 
heirs,  executors,  and  administrators  by  these  presents.  Sealed 
with  my  seal,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

The  condition   of   this   obligation    is   such,    that   if   the 
above-bounden  ,  guardian  of  ,  of  ,  in  said 

County  of  ,  minor    ,  shall, 


566  APPENDIX. 

First,  make  and  return  to  said  Probate  Court,  at  such  time 
as  it  may  order,  a  true  inventory  of  all  the  real  and  personal 
estate  of  said  ward  that  at  the  time  of  the  making  of  such  in- 
ventory shall  have  come  to  the  possession  or  knowledge  of  said 
guardian ; 

Second,  manage  and  dispose  of  all  such  estate  according  to 
law  and  for  the  best  interests  of  said  ward  ,  and  faithfully  dis- 
charge h  trust  in  relation  to  such  estate,  and  to  the  custody, 
education,  and  maintenance  of  said  ward  ; 

Third,  render  upon  oath  at  least  once  a  year,  until  h  trust 
is  fulfilled,  unless  h  is  excused  therefrom  in  any  year  by  said 
Court,  a  true  account  of  the  property  in  h  hands,  including 
the  proceeds  of  all  real  estate  sold  or  mortgaged  by  h  ,  and  of 
the  management  and  disposition  thereof,  and  also  render  such 
account  at  such  other  times  as  said  Court  may  order;  and 

Fourth,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  or  with  said  ward  ,  or  h  legal  representatives,  and 
pay  over  and  deliver  all  the  estate  remaining  in  h  hands,  or 
due  from  h  on  such  settlement,  to  the  person  or  persons  law- 
fully entitled  thereto; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

88.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,   the  within-named   guardian,    declare  that,  to  the 

best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 
w^ithin-named  ward  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Real  Estate,         $ 
Personal  Estate,  $  . 

[sign] 


PROBATE   FORMS.  567 

Guabdian's  Bond  —  Spendthrift. 

[R.  L.  c.  145,  §  10 ;  c.  149,  §  1.] 

Know  all  Men  bt  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal  ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and  obliged  unto  ,  Esquire,  Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office ;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,    guardian    of  j    of  ,    in    said 

County  of  ,  a  spendthrift,  shall. 

First,  make  and  return  tu  said  Probate  Court,  at  such  time 
as  it  may  order,  a  true  inventory  of  all  the  real  and  personal 
estate  of  said  ward  that  at  the  time  of  the  making  of  such  in- 
ventory shall  have  come  to  the  possession  or  knowledge  of  said 
guardian ; 

Second,  manage  and  dispose  of  all  such  estate  according  to 
law  and  for  the  best  interests  of  said  ward,  and  faithfully  dis- 
charge h  trust  in  relation  to  such  estate,  and  to  the  custody 
and  maintenance  of  said  ward ; 

Third,  render  upon  oath  at  least  once  a  year,  until  h  trust 
is  fulfilled,  unless  h  is  excused  therefrom  in  any  year  by  said 
Court,  a  true  account  of  the  property  in  h  hands,  including 
the  proceeds  of  all  real  estate  sold  or  mortgaged  by  h  ,  and  of 
the  management  and  disposition  thereof,  and  also  render  sucli 
account  at  such  other  times  as  said  Court  may  order;  and 

Fourth,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  or  with  said  ward,  or  h      legal  representatives,  and 


568'  APPENDIX. 

pay  over  and  deliver  all  the  estate  remaining  in  h  hands,  or 
due  from  h  on  such  settlement,  to  the  person  or  persons  law- 
fully entitled  thereto; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


ss.  A.  D.  19     .     Examined  and  approved. 

Jndge  of  Probate  Court. 

I,  ,   the  within-named   guardian,    declare   that,    to  the 

best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 
within-named  ward  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Real  Estate,         $ 

Personal  Estate,  $ 

[sign] 


Trustee's  Bond  —  with  Sureties. 

[R.  L.  c.  149,  §  1.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal  ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,   in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and  obliged  unto  ,  Esquire,  Judge  of   the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  ofSce;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and  , 


PROBATE   FORMS.  569 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  trustee    of  certain  estate  given  in  trust 

for  the  benefit  of  ,  under  the  will  of  ,  late  of  , 

ill  said  County  of  ,  deceased,  testate,  shall, 

First,  make  and  return  to  said  Probate  Court,  at  such  time 
as  it  may  order,  a  true  inventory  of  all  the  real  and  personal 
estate  belonging  to  h  as  such  trustee  which  at  the  time  of 
the  making  of  such  inventory  shall  have  come  to  h  possession 
or  knowledge; 

Second,  manage  and  dispose  of  all  such  estate,  and  faithfully 
discharge  h  trust  in  relation  thereto,  according  to  law  and 
to  the  will  of  said  testat  ; 

Third,  render  upon  oath  at  least  once  a  year,  until  h  trust 
is  fulfilled,  unless  h  is  excused  therefrom  in  any  year  by  said 
Court,  a  true  account  of  the  property  in  h  hands,  and  of  the 
management  and  disposition  thereof,  and  also  render  such 
account  at  such  other  times  as  said  Court  may  order; 

Fourth,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  and  pay  over  and  deliver  all  the  estate  remaining  in 
h  hands,  or  due  from  h  on  such  settlement,  to  the  person  or 
persons  entitled  thereto. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  trustee,  declare  that,  to  the  best 

of  my  knowledge  and  belief,  the  within-named  estate  does  not 
exceed  in  value  the  following-mentioned  sums,  viz. : 
Real  Estate,  $  . 

Personal  Estate,  $  • 

[sign] 


570  APPENDIX. 

Trustee's  Bond  —  without  Sureties. 

[R.  L.  c.  149,  §§  1,  4.] 

Know  all  Men  by  these  Presents, 

That  I,  ,  of  ,  in  the  County  of  ,  in  the  Com- 

monwealth of  Massachusetts,  am  holden  and  stand  firmly  bound 
and  obliged  unto  ,  Esquire,  Judge  of  the  Probate  Court 

in  and  for  the   County   of  ,  in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  Judge  and  his  successors  in 
said  office  ;  to  the  true  payment  whereof  I  bind  myself  and  my 
heirs,  executors,  and  administrators  by  these  presents.  Sealed 
with  my  seal,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  trustee    of  certain  estate  given  in  trust 

for  the  benefit  of  ,  under  the  will  of  ,  late  of  , 

in  said  County  of  ,  deceased,  testate,  shall, 

First,  make  and  return  to  said  Probate  Court,  at  such  time 
as  it  may  order,  a  true  inventory  of  all  the  real  and  personal 
estate  belonging  to  h  as  such  trustee  which  at  the  time  of 
the  making  of  such  inventory  shall  have  come  to  h  possession 
or  knowledge; 

Second,  manage  and  dispose  of  all  such  estate,  and  faithfully 
discharge  h  trust  in  relation  thereto,  according  to  law  and 
to  the  will  of  said  testat  ; 

Third,  render  upon  oath  at  least  once  a  year,  until  h  trust 
is  fulfilled,  unless  h  is  excused  therefrom  in  any  year  by  said 
Court,  a  true  account  of  the  property  in  h  hands,  and  of  the 
management  and  disposition  thereof,  and  also  render  such 
account  at  such  other  times  as  said  Court  may  order; 

Fourth,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  and  pay  over  and  deliver  all  the  estate  remaining  in 
h  hands,  or  due  from  h  on  such  settlement,  to  the  person 
or  persons  entitled  thereto, 


PKOBATE    FOKMS.  571 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Sigued,  sealed,  aud  delivered 
in  preseuce  of 

ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  trustee,  declare  that,  to  the  best 

of  my  knowledge  and  belief,  the  within-named  estate  does  not 
exceed  in  value  the  following-mentioned  sums,  viz. : 
Eeal  Estate,         $ 
Personal  Estate,  $ 
[sign] 


Trustee's    Bond  —  Inventory    not    Required  —  with 
Sureties. 

[R.  h.  c.  147,  §  7.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal  ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and  obliged   unto  ,   Esquire,  Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office ;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The   condition   of   this   obligation   is   such,   that    if   the 
above-bounden  ,   trustee  of  certain  estate  given  in  trust 

for  the  benefit  of  ,  under  the  will  of  ,  late  of 

in  said  County  of  ,  deceased,  testate,  shall, 


572  APPENDIX. 

First,  manage  and  dispose  of  all  the  real  and  personal  estate 
belonging  to  h  as  such  trustee  ,  and  faithfully  discharge 
h  trust  in  relation  thereto,  according  to  law  and  to  the  will 
of  said  testat  ; 

Second,  render  upon  oath  at  least  once  a  year,  until  h  trust 
is  fulfilled,  unless  h  is  excused  therefrom  in  any  year  by  said 
Court,  a  true  account  of  the  property  in  h  hands,  and  of  the 
management  and  disposition  thereof,  and  also  render  such 
account  at  such   other  times  as  said  Court  may  order; 

Third,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  and  pay  over  and  deliver  all  the  estate  remaining  in 
h  hands,  or  due  from  h  on  such  settlement,  to  the  person 
or  persons  entitled  thereto; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Covrt. 

I,  ,  the  within-named  trustee,  declare  that,  to  the  best 

of  my  knowledge  and  belief,  the  within-named  estate  does  not 
exceed  in  value  the  following-mentioned  sums,  viz. : 
Real  Estate,         $ 
Personal  Estate,  S  . 

[sign] 


Trustee's  Bond  —  Inventory  not  Required  —  without 
Sureties. 

[R.  L.C.  147,  §7;  c.  149,  §4.] 

Know  all  Men  by  these  Presents, 

That  I,  ,  of  ,  in  the  County  of  ,  in  the  Com- 

monwealth of  Massachusetts,  am  holden  and  stand  firmly  bound 
and  obliged  unto  ,  Esquire,  Judge  of  the  Probate  Court 


PROBATE   FORMS.  573 

in  and  for  the  County  of  ,   in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  Judge  and  his  successors  in 
said  office ;  to  the  true  payment  whereof  I  bind  myself  and  my 
heirs,  executors,  and  administrators  by  these  presents.  Sealed 
with  my  seal,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  trustee     of  certain  estate  given  in  trust 

for  the  benefit  of  ,  under  the  will  of  ,  late  of  , 

in  said  County  of  ,  deceased,  testate,  shall, 

First,  manage  and  dispose  of  all  the  real  and  personal  estate 
belonging  to  h  as  such  trustee  ,  and  faithfully  discharge 
h  trust  in  relation  thereto,  according  to  law  and  to  the  will 
of  said  testat  ; 

Second,  render  ujion  oath  at  least  once  a  year,  until  h  trust 
is  fulfilled,  unless  h  is  excused  therefrom  in  any  year  by  said 
Court,  a  true  account  of  the  property  in  h  hands,  and  of  the 
management  and  disposition  thereof,  and  also  render  such 
account  at  such  other  times  as  said  Court  may  order; 

Third,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  and  pay  over  and  deliver  all  the  estate  remaining  in 
h  hands,  or  due  from  h  on  such  settlement,  to  the  person 
or  persons  entitled  thereto; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

88.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  trustee  ,  declare  that,  to  the  best 

of  my  knowledge  and  belief,  the  within-named  estate  does  not 
exceed  in  value  the  following-mentioned  sums,  viz, : 
Real  Estate,         $ 
Personal  Estate,  $  . 

[sign] 


574  APPENDIX. 


Petition  for  Guardianship. 

[After  the  name  of  each  minor,  state  tlie  exact  date  of  birth.  Notice  must  be  given  to 
the  parents,  if  living,  or  to  the  survivor  of  them,  or  their  assent  must  be  obtained.] 

To  the  IlonorahU  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Eespectfully  represents  ,    of  ,  in   the  County  of 

,  that  there  is  occasion  for  the  appointment  of  a  guar- 
dian of 

born  18     , 

18     , 

18     , 

of  ,    in   the   County   of  ,    minor     and   child         of 

,  late  of  ,  in  the  County  of  ,  deceased,   and 

,  his  widow; 

and  your  petitioner  prays  that    he,  or  some  other  suitable  per- 
son may  be  appointed  to  that  trust. 

Dated  this  day  of  ,  A.  d.  19 

ss.  A.  D.  19     . 

Personally  appeared  the  above-named  ,  minor  ,  above  the 

age    of   fourteen   years,    and   nominated   said  to   be   h 

guardian. 

Before  me, 

Justice  of  the  Peace. 

I,  the  surviving  parent  of  said  minor  ,  hereby  assent 

to  the  granting  of  the  foregoing  petition. 

Citation  by  publication  once  a  week  for  tbree  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  or  by  delivering  a  copy 
seven  days  at  least  before  return  day. 


PROBATE    FORMS.  575 


Petition  for  Guardianship  of  Insane, 

[This  application  must  be  made  by  two  or  more  of  the  relations  or  friends  of  the  insane 
person,  or  the  selectmen,  or  Mayor  and  Aldermen,  of  the  place  of  which  he  is  an  inhabitant 
or  resident,  or  upon  which  he  is  or  may  become  chargeable.] 

To  the  Honorable  the  Juilge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully    represent  ,   of  ,    in    the    County    of 

,  that  ,  an  inhabitant  or  resident  of  ,  in  said 

County  of  ,  is  an   insane  person,  and  incapable  of  taking 

care  of  h     self.     Your  petitioners  therefore  pray  that  ,  of 

,  or  some  other  suitable  person,  may  be  appointed  guar- 
dian of  said  ,  agreeably  to  the  law  in  such  case  made  and 
provided. 

Dated  this  day  of  ,  A.  d.  19     . 

Citation  by  delivering  a  copy  to  tlie  iusane  person  fourteen  days  at  least 
before  return  day 


Petition  for  Guardianship  of  Spendthrift. 

[R.  L.  c.  145,  §  7.] 

[T'he  complaint  may  be  made  by  the  relations,  or  Overseers  of  the  Poor  of  the  place  o£ 

which  the  spendthrift  is  an  inhabitant  or  resident.] 

Tj  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  complain  relation  of  ,  overseers 

of   the    poor   of    the    city    of  —  town    of  —  selectmen    of    the 
town  of  —  in  said  County,  that  in     h     judgment,  , 

an  inhabitant  or  resident  of  ,  does,  by  excessive  drinking, 

gaming,  idleness,  so  spend,   waste,   and  lessen  h 

estate,  as  to  expose  h      self  and  family  to  want  or  suffering; 
and   does   also  thereby   expose   said    city  of  —  town  of  , 

to  charge  or  expense  for  h       and  their  support. 

Wherefore    he    pray  ,  that  ,  of  ,  in  County  of  , 

or  some  other   suitable   person,  may  be  appointed  guardian  of 
the  person  and  estate  of  said  ,  agreeably  to  the  law  in  such 

case  made  and  provided. 

Dated  this  day  of  A.  d.  19 

Citation  by  serving  spendthrift  with  copy  of  order  fourteen  days  at  least 
before  return  day. 


576  APPENDIX. 


Petition  fob  Guardianship  by  Foreign  Guardian. 

To  the  Honorable  the  Jiuhji;  of  the  Frobate  Court  in  and  for  the 
County  of 
Respectfully  represents  that  lie  is  a  resident  of  , 

in   the   State    of  ,   that    he   is   the    guardian   of  ,    a 

minor,  who  is  a  resident  of  ,  in  said  State  of  ,  duly 

appointed  on  the  day  of  ,  A.  d.  19     ,  by  a  Court  of 

competent   jurisdiction,    to    wit  :'    the  Court    in    and    for 

,  and  has  given  a  bond  and  security  as  such  guardian  in 
double  the  value  of  the  property  of  such  ward,  to  wit :  in  the 
sum  of  dollars;  a  full  and  complete  and  duly  exemplified 

or  authenticated  transcript  from  the  records  of  said  Court 

in  and  for  said  ,   are  herewith  produced.     That  h       ap- 

pointment is  still  in  full  force,  that  his  ward  entitled  to 

property  in  the  said  County  of  ,  to  wit: 

that  a  removal  of  the  movable  property  or  estate  of  said  ward  out 
of  this  Commonwealth  will  not  conflict  with  the  terms  or  limita- 
tions attending  the  right  by  which  the  ward  owns  the  same. 

Wherefore  j'our  petitioner  prays  that  letters  of  guardianship 
of  the  estate  of  said  ward  in  this  Commonwealth  be  issued  to  him, 
which  shall  authorize  him  to  care  for  and  manage  the  real  estate 
of  said  ward,  to  collect  the  rents,  issues  and  profits  therefrom, 
and  to  demand,  sue  for,  and  recover  any  such  property,  and  to 
remove  any  of  the  movable  property  or  estate  of  said  ward  out  of 
this  Commonwealth. 


Petition  for  Trusteeship  —  with  Sureties. 

[No  notice  required  for  the  appointment  of  a  trustee  who  is  designated  in  a  will.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  a7id  for 

the  County  of 

Respectfully  represents  ,   of  ,  in  the   County  of 

,  that  ,   late  of  ,  in  said  County  of  , 

deceased,  testate,  by  h      last  will  and  testament,  duly  proved 

and  allowed  on  the  day  of  ,  A.  d.    19     ,    in  said 


PROBATE    FORMS.  577 

Court,  did  therein  give  certain  estate  in  trust  for  the  use  and 
benefit  of  ,  and  appointed  ,  trustee  thereof; 

and  that  h  is  willing  to  accept  said  trust,  and  give  bond 
according  to  law  for  the  faithful  discharge  thereof;  he  there- 
fore pray  that  he  may  be  appointed  trustee  as  aforesaid,  ac- 
cording to  the  provisions  of  the  law  in  such  case  made  and 
provided. 

Dated  this  day  of  ,  A.  d.  19     . 

The  undersigned,    being  all   the  persons  interested,   hereby 
assent  to  the  foregoing  petition. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


Petition  for  Trusteeship  —  without  Sureties. 

[R.  L.  c.  149,  §  i  ] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  ,  of  ,   in   the  County  of 

,  that  ,   late  of  ,    in    the  County  of  , 

deceased,  testate,  by    h      last  will   and   testament,  proved  and 
allowed  on  the  day  of  ,  A.  d.  19     ,  in  said  Court, 

did  therein  give  certain  estate  in  trust  for  the  use  and  benefit  of 
,    and  appointed  trustee    thereof,    and  in  and  by 

said  will  requested  that  said  be  exempted  from  giving  a 

surety    on     h       bond    as    such   trustee  ,  that    he 

willing  to  accept  said  trust,  and  give  bond  according  to  law  for 
the  faithful  discharge  thereof;     he     therefore  pray    that    he 
may  be  appointed  trustee    as  aforesaid,  and  that    he    may  be 
exempt  from   giving  a  surety  on    h    bond  ,   according  to  the 
provisions  of  the  law  in  such  case  made  and  provided. 

Dated  this  day  of  ,  a.  d.  19     . 

37 


578  APPENDIX. 


Administrator's  Bond  —  with  Sureties. 

[R.  L.  c.  149,  §  1.] 

Know  all  Men  by  these  Presents, 
That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal  ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  hound  and  obliged  unto  ,  Esquire,  Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office ;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors, 
and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,   administrat         of   the  estate  of  , 

late  of  said  ,  deceased,  intestate,  shall, 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  administrat  ; 

Second,  administer  according  to  law  all  the  personal  estate  of 
said  deceased  which  may  come  to  the  possession  of  said  admin- 
istrat ,  or  of  any  person  for  h  ,  and  also  the  proceeds  of  any 
of  the  real  estate  of  said  deceased  that  may  be  sold  or  mortgaged 
by  said  administrat  ; 

Third,  render  upon  oath,  a  true  account  of  h  administration 
at  least  once  a  year,  until  h  trust  is  fulfilled,  unless  he  is 
excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order; 

Fourth,  pay  to  such   persons  as  said  Court   may  direct   any 
balance   remaining  in   h      hands  upon  the  settlement  of  h 
accounts;  and 


PROBATE    FORMS.  579 

Fifth,  deliver  h  letters  of  administration  into  said  Court 
in  case  any  will  of  said  deceased  is  hereafter  duly  proved  and 
allowed. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


8S.  19     .     Examined  and  apjiroved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects 
of  the  within-named  deceased  do  not  exceed  in  value  the 
following-mentioned  sums,  viz. : 

Real  Estate,         $ 

Personal  Estate,  $  , 


Petition  for  New  Bond. 

To  the  Honorable  the  Judge  of  the  Probate  Coui't  in  and  for  the 
County  of 

Respectfully   represents  ,    of  ,   in   the   County  of 

,   that    he    is  heir-at-law  ,   of  ,   late  of  said 

,  deceased,  and   is  interested  in   the   estate  of  the 

said  deceased. 

that  at  a  Probate  Court  held  at  said  ,  on  the  day  of 

,   A.  D.   19     ,  of   said  ,  was  duly  appointed 

administrat        — execut         of  the  estate  of  said  deceased, 

and  gave  bond  in  the  sum  of  dollars,  with  ,  of  , 

and  ,  of  ,  as  sureties,  for  the  faithful  discharge  of 

h      trust;  that  said  estate  is  not  fully  administered}  that  said 


580  APPENDIX. 

sureties  are  not  sufficient  to  ensure  the  faithful  discharge  of 
said  trust;  the  said  administrat         — execut         having 

Wherefore    he    prays  that  said  may  be  required  to  give 

a  new  bond  with  such  sureties  and  in  such  sum.  as  the  Court 
'nay  direct. 

Dated  this  day  of  ,  A.  d.  19     . 

Personal  service  on  executor,  administrator,  guardian,  or  trustee. 


Administrator's  Letter. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,   of  ,    in   the   County  of  ,  a7id   Common- 

ivealth  aforesaid : 

You  are   appointed  admin istrat         of   the   estate  of  , 

late  of  ,  in  said  County  of  ,  deceased,  intestate. 

And  you  are  required  to  make  and  return  to  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  the  real  and  personal  estate  of  said  deceased  which 
at  the  time  of  the  making  of  such  inventory  shall  have  come  to 
your  possession  or  knowledge; 

To  administer  according  to  law  all  the  personal  estate  of  said 
deceased  which  may  come  to  your  possession,  or  that  of  any  per- 
son for  you,  and  also  the  proceeds  of  any  of  the  real  estate  of 
said  deceased  that  may  be  sold  or  mortgaged  by  you; 

To  render  upon  oath  a  true  account  of  your  administration  at 
least  once  a  year,  until  j'our  trust  is  fulfilled,  unless  excused 
therefrom  in  any  year  by  said  Court; 

To  pay  any  balance  remaining  in  your  hands  upon  the  set- 
tlement of  your  accounts  to  such  persons  as  said  Court  shall 
direct; 

To  deliver  these  letters  of  administration  into  said  Court  in 
case  any  will  of  said  deceased  shall  be  hereafter  duly  proved 
and  allowed ; 


PROBATE   FORMS.  681 

And  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  published  once  in  each  week  for  three  succes- 
sive weeks  in  the  ,  a  newspaper  published  in  ,  and 
return  your  affidavit  of  having  given  such  notice,  with  a  copy 
thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 


Administrator's  Affidavit  of  Notice  of  Appointment. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,   do  testif}'  and  say  that         gave  notice  of         ap- 

pointment to  and  acceptance  of  the  trust  of  administrat         of 
the   estate  ,  of  ,   late  of  ,   in  the  County  of 

,    deceased,    within   three   months   from    the  day 

of  ,   A.  D.   19     ,  the  time  of   said  appointment,  by 

publishing  a  notification  thereof   once  in  each  week  for  three 
successive  weeks  in  the  ,  a  newspaper  published  in  > 

commencing  on  the  day  of  ,  A.  D.  19     ,  and  the 

following  is  a  true  copy  thereof,  viz. :  — 

Kotice   is  hereby  given  that  the   subscriber  has  been  duly 
appointed  administrat         of  the  estate  of  ,  late  of  , 

in   the   County  of  ,    deceased,   intestate,   and    ha     taken 

upon    h     self  that  trust  by  giving  bond  ,  as  the  law  directs. 
All  persons  having  demands  upon  the  estate  of  said  deceased  are 
required  to  exhibit  the  same;  and  all  persons  indebted  to  said 
estate  are  called  upon  to  make  payment  to 
(^Address) 

,19     . 

Adm. 

Adm. 
,  S8.  ,  A.  D.  19     .     Personally  appeared  , 

and  made  oath  that  the  foregoing  affidavit  by    h      subscribed 
is  true. 

Before  me, 

Justice  of  the  Peace* 


582  APPENDIX. 

Administrator's   Letter  —  De  Bonis  Non. 

COMMONWEALTH    OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,   of  ,   in  the  County  of  ,  and  Common' 

wealth  aforesaid : 

You  are  appointed  administrat  of  the  estate  not  already- 
administered  of  ,  late  of  ,  in  said  County  of  , 
deceased,  intestate. 

And  you  are  required  to  make  and  return  to  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  the  real  and  personal  estate  of  said  deceased  which 
at  the  time  of  the  making  of  such  inventory  shall  have  come  to 
your  possession  or  knowledge; 

To  administer  according  to  law  all  the  personal  estate  of  said 
deceased  which  may  come  to  your  possession,  or  that  of  any  per- 
son for  3^ou,  and  also  the  proceeds  of  any  of  the  real  estate  of 
said  deceased  that  may  be  sold  or  mortgaged  by  you ; 

To  render  upon  oath  a  true  account  of  your  administration  at 
least  once  a  year,  until  your  trust  is  fulfilled,  unless  excused 
therefrom  in  any  year  by  said  Court; 

To  pay  any  balance  remaining  in  your  hands  upon  the  set- 
tlement of  your  accounts  to  such  persons  as  said  Court  shall 
direct; 

To  deliver  these  letters  of  administration  into  said  Court  in 
case  any  will  of  said  deceased  shall  be  hereafter  duly  proved 
and  allowed; 

And  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  published  once  in  each  week  for  three  succes- 
sive weeks  in  the  ,  a  newspaper  published  in  ,  and 
return  your  affidavit  of  having  given  such  notice,  with  a  copy 
thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,   this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Jlegister. 


PKOBATE   FORMS.  583 


Administrator's  Affidavit  of  Notice  of  Appointment  — 
De  Bonis  Non. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,   do  testify  and  say  that         gave   notice  of         aj> 

pointment  to  and  acceptance  of  the  trust  of  administrat         of 
the  estate  not  already  administered  of  ,  late  of  ,  in 

the  County  of  ,  deceased,  within   three  months  from  the 

day  of  ,  A.  D.  19     ,  the  time  of  said  appointment, 

by  publishing  a  notification  thereof  once  in  each  week 
for  three  successive  weeks  in  the  ,  a  newspaper  published 

in  ,  commencing  on  the  day  of  ,  A.  d.  19     , 

and  the  following  is  a  true  copy  thereof,  viz. :  — 

Notice  is  hereby  given  that  the  subscriber  has  been  duly 
appointed  administrat  of  the  estate  not  already  administered 
of  ,  late  of  ,  in  the  County  of  ,  deceased,  in- 

testate, and  has  taken  upon  h  self  that  trust  by  giving  bond, 
as  the  law  directs.  All  persons  having  demands  upon  the 
estate  of  said  deceased  are  required  to  exhibit  the  same;  and 
all  persons  indebted  to  said  estate  are  called  upon  to  make 
payment  to 
(Address) 

,  19     . 

Adm. 

Adm. 

,    ss.  A.   D.    19     .     Personally  appeared  , 

and  made  oath  that  the  foregoing  affidavit  by  h      subscribed 
is  true. 

Before  me, 

Justice  of  the  Peace. 


584  APPENDIX. 

Special  Administrator's  Letter. 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  of,  ,  in  the   County  of  ,   and   Common- 

wealth aforesaid: 

You  are  appointed   special   administrat         of   the  estate  of 
,  late  of  ,  in  the  County  of  ,  deceased. 

And  you  are  required  to  make  and  return  into  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  in- 
ventory of  all  the  goods,  chattels,  rights,  and  credits  of  said 
deceased  which  have  or  shall  come  to  your  possession  or  knowl- 
edge; and  truly  account  on  oath  for  all  the  goods,  chattels, 
debts,  and  effects  of  said  deceased  that  shall  be  received  by 
you  as  such  special   administrat  whenever  required  by  the 

Probate  Court,  and  deliver  the  same  to  whomsoever  shall  be 
appointed  executor  or  administrator  of  the  estate  of  said  de- 
ceased, or  to  such  other  person  as  shall  be  lawfully  authorized 
to  receive  the  same;  and  you  are  authorized  to  take  charge  of 
all  real  estate  of  said  deceased,  collect  the  rents,  and  make 
necessary  repairs. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 


Public  Administrator's  Letter. 

COMMONWEALTH  OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,    Public   Administrator   in   and  for   said    County 

of 
These  letters  of  administration  upon  the  estate  of  ,  late 

of  ,    in   said   County   of  ,   deceased,    intestate,    are 

hereby  granted  unto  you. 


PROBATE    FORMS.  585 

And  you  are  required  to  make  and  return  to  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  the  real  and  personal  estate  of  said  deceased  which 
at  the  time  of  the  making  of  such  inventory  shall  have  come  to 
your  possession  or  knowledge; 

To  administer  according  to  law  all  the  personal  estate  of  said 
deceased  which  may  come  to  your  possession,  or  that  of  any  per- 
son for  you ;  and  also  the  proceeds  of  any  of  the  real  estate  of 
said  deceased  that  may  be  sold  by  you; 

To  render  upon  oath  a  true  account  of  your  administration  at 
least  once  a  year,  until  your  trust  is  fulfilled,  unless  excused 
therefrom  in  any  year  by  said  Court; 

To  pay  the  balance  of  said  estate  remaining  in  j^our  hands 
upon  the  settlement  of  your  accounts  to  such  persons  as  said 
Court  may  direct;  and,  when  said  estate  has  been  fully  admin- 
istered, to  deposit  with  the  Treasurer  of  the  Commonwealth  the 
whole  amount  remaining  in  your  hands; 

And,  upon  the  appointment  and  qualification  in  any  case  of 
an  executor  or  administrator  as  your  successor,  to  surrender  into 
said  Court  said  letters  of  administration,  with  an  account  under 
oath  of  your  doings  therein,  and  upon  a  just  settlement  of  such 
account  to  pay  over  and  deliver  to  such  successor  all  sums  of 
money  remaining  in  your  hands,  and  all  property,  effects,  and 
credits  of  said  deceased  not  then  administered; 

And  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  published  once  in  each  week  for  three  succes- 
sive weeks  in  the  ,  a  newspaper  published  in  said  , 
and  return  your  affidavit  of  having  given  such  notice,  with  a 
copy  thereof,  to  the  Probate  Court. 

"Witness,  ,  Judge  of  said  Court,   at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 


586  APPENDIX. 


Public  Administrator's  Affidavit  of  Notice  of 
Appointment. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,   do  testify  and  say  that  I   gave  notice  of  my   ap-^ 

pointment  to  and  acceptance  of  the  trust  of  public  administrator 
of  the  estate  of  ,  late  of  ,  in  the  County  of  , 

deceased,    within    three    months   from   the  day   of  , 

a.  d.  19     ,  the  time  of  said  appointment,  by  publishing 

a  notification  thereof  once  in  each  week  for  three  successive 
weeks    in    the  ,    a    newspaper   published    in  ,   com- 

mencing on  the  day  of  ,   A.  d.    19     ,    and  the  fol- 

lowing is  a  true  copy  thereof,  viz. :  — 

Notice  is  hereby  given  that  the   subscriber  has  been  duly 
appointed  public  administrator  of  the  estate  ,   of  , 

late  of  ,  in  the  County  of  ,  deceased,  intestate,  and 

has  taken  upon  himself  that  trust  by  giving  bond  as  the  law 
directs.  All  persons  having  demands  upon  the  estate  of  said 
deceased  are  hereby  required  to  exhibit  the  same;  and  all  per- 
sons indebted  to  said  estate  are  called  upon  to  make  pay- 
ment to 

(Address) 

,19    . 

Public  Adm, 

Public  Adm. 

,  ss.  ,   A.  D,  19     .     Personally  appeared 

and  made  oath  that  the  foregoing  affidavit  by  h  subscribed 
is  true. 

Before  me, 

Justice  of  the  Peace. 


PROBATE   FORMS.  587 

Executor's  Letter. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,   of  ,   in  the  County  of  ,  and   Common' 

wealth  aforesaid : 

You  are  appointed  execut         of  the  last  will  and  testament  of 
,  late  of  ,  in  said  County  of  ,  deceased,  tes- 

tate, which  will   was   proved   and   allowed  on  the  day  of 

,  A.  D.  19     ,  by  said  Court,  and  is  now  of  record  in  this 
Court. 

And  you  are  required  to  make  and  return  into  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  the  real  and  personal  estate  of  said  deceased  which  at 
the  time  of  the  making  of  such  inventory  shall  have  come  to 
your  possession  or  knowledge; 

To  administer  according  to  law  and  to  the  will  of  said  de- 
ceased all  the  personal  estate  of  said  deceased  which  may  come 
to  your  possession,  or  that  of  any  person  for  you,  and  also  the 
proceeds  of  any  of  the  real  estate  of  said  deceased  that  may  be 
sold  or  mortgaged  by  you ; 

To  render  upon  oath  a  true  account  of  your  administration  at 
least  once  a  year,  until  your  trust  is  fulfilled,  unless  excused 
therefrom  in  any  year  by  said  Court ; 

And  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  published  once  in  each  week  for  three  succes- 
sive weeks  in  the  ,  a  newspaper  published  in  said  , 
and  return  your  affidavit  of  having  given  such  notice,  with  a 
copy  thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 


588  APPENDIX. 

Executor's  Affidavit  of  Notice  of  Appointment. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,  do  testify   and   say  that  I  gave  notice   of  my  ap- 

pointment to  and  acceptance  of  the  trust  of  execut         of  the 
will  of  ,  late  of  ,  in  the  County  of  ,  deceased, 

testate,    within    three    months    from    the  day    of  , 

A.  D.  19     ,  the  time  of  said  appointment,  by  publishing 

a  notification   thereof  once  in  each   week  for   three   successive 
weeks    in   the  ,    a    newspaper   published   in  ,    com- 

mencing on  the  day  of  ,    A.   d.   19     ,   and  the  fol- 

lowing is  a  true  copy  thereof,  viz. :  — 

Notice   is  hereby  given   that   the   subscriber    ha    been  duly 

appointed  execut         of  the  will  of  ,  late  of  ,  in  the 

County   of  ,    deceased,    testate,     and    ha       taken    upon 

h       se         that  trust  by  giving  bond  ,    as    the  law  directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  hereby  required  to  exhibit  the  same;   and  all  persons  in- 
debted to  said  estate  are  called  upon  to  make  payment  to 
(Address) 

,19     . 

Execut 

Execut 

,  88.  ,  A.  D.  19     .     Personally  appeared         and 

made  oath  that  the  foregoing  affidavit  by    h      subscribed  is 

true. 

Before  me, 

Justice  of  the  Peace. 


PROBATE    FORMS.  589 

Letter  on  Foreign  Will. 

COMMONWEALTH  OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,    of  ,  in  the   County  of  ,  and   Common- 

ivealth  aforesaid: 

You  are  appointed  execut         of  the  last  will  and  testament  of 
,  late  of  ,  deceased,  testate,   which  said  will  was 

proved  and  allowed  in  said  State  of  ,  and  on  the 

day  of  ,  A.  D.  19     ,  a  copy  thereof  was  required  to  be  filed 

and  recorded  in  the  Registry  of  Probate  of  this  County,  and  is 
now  of  record  in  this  Court. 

And  you  are  required  to  make  and  return  into  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  the  real  and  personal  estate  of  said  deceased  which  at 
the  time  of  the  making  of  such  inventory  shall  have  come  to 
your  possession  or  knowledge; 

To  administer  according  to  law  and  to  the  will  of  said  de- 
ceased all  the  personal  estate  of  said  deceased  which  may  come 
to  your  possession,  or  that  of  any  person  for  you,  and  also  the 
proceeds  of  any  of  the  real  estate  of  said  deceased  that  may  be 
sold  or  mortgaged  by  you; 

To  render  upon  oath  a  true  account  of  your  administration  at 
least  once  a  year,  until  your  trust  is  fulfilled,  unless  excused 
therefrom  in  any  year  by  said  Court ; 

And  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  published  once  in  each  week  for  three  succes- 
sive weeks  in  the  ,  a  newspaper  published  in  said  , 
and  return  your  affidavit  of  having  given  such  notice,  with  a 
copy  thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register, 


590  APPENDIX. 


Executor's  Affidavit  of  Notice  of  Appointment  — 
Foreign  Will. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.  1 

I,  ,  do  testify  and  say  that         gave   notice  of         ap- 

pointment to  and  acceptance  of  the  trust  of  execut         of  the 
will  of  ,  late  of  ,  in  the  County  of  ,  deceased, 

testate,    within    three    months   from   the  day  of  , 

A.  D.  19     ,  the  time  of  said  appointment,  by  publishing 

a  notification  thereof  once'  in  each  week  for  three   successive 
weeks   in   the  ,    a   newspaper   published  in  ,    com- 

mencing on  the  day  of  ,   A.  d.   19     ,  and  the  fol- 

lowing is  a  true  copy  thereof,  viz. :  — 

Notice  is  hereby  given   that  the   subscriber    ha     been  duly 

appointed  execut         of  the  will  of  ,  late  of  ,  in  the 

County   of  ,    deceased,     testate,     and    ha      taken    upon 

h         self   that   trust   by   giving   bond  ,    as  the    law  directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same;  and  all  persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to 
(Address) 

,19    . 

Execut 

Execut 

,  ss.  ,  A.  D.  19     .     Personally  appeared  and 

made  oath   that   the  foregoing   affidavit  by  h      subscribed  is 
true. 

Before  me, 

Justice  of  the  Peace. 


PROBATE   FORMS.  591 

Executor's  Letter — Kesiduary. 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  f  of  ,  171  the  County  of  ,    and  Common' 

wealth  aforesaid: 

You  are  appointed  execut  of  the  last  will  and  testament 
of  ,  late  of  ,  in  the  County  of  ,  deceased,  tes- 

tate, which   will  was  proved  and  allowed  on  the  day  of 

,  A.  D.  19     ,  by  said  Court,  and  is  now  of  record  in  this 
Court. 

And  you,  being  residuary  legatee,  and  having  given  bond 
therefor,  are  required  to  pay  all  debts  and  legacies  of  said 
deceased ; 

And  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  published  once  in  each  week  for  three  succes- 
sive weeks  in  the  ,  a  newspaper  published  in  ,  and 
return  your  affidavit  of  having  given  such  notice,  with  a  copy 
thereof,  to  the  Probate  Court. 

Witness,  ,   Judge  of   said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Begister. 

Executor's  Affidavit  of  Notice  of  Appointment. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,  do  testify  and  say  that  I  gave  notice  of  my  ap- 

pointment to  and  acceptance  of  the  trust  of  execut         of  the 
will  of  ,  late  of  ,  in  the  County  of  ,  deceased, 

testate,    within   three    months   from    the  day   of  , 

A.  D.  19     ,  the  time  of  said  appointment,  by  publishing 

a  notification  thereof  once  in   each  week  for  three   successive 
weeks   in   the  ,   a   newspaper   published  in  ,    com- 


592  APPENDIX. 

mencing  on   the  day  of  ,   A.  D.  19     ,   and  the  fol- 

lowing is  a  true  copy  thereof,  viz.  :  — 

Notice  is  hereby  given  that  the   subscriber    ha     been  duly 

appointed   execut         of   the   will  of  ,    late  of  ,    in 

the   County  of  ,  deceased,    testate,    and  ha      taken  upon 

h      self    that^trust   by   giving   bond  ,    as    the    law   directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same;  and  all   persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to 
(Address) 

,19     . 

Execut 

Execut 

,  ss.  ,  A.  D.  19     .     Personally  appeared  and 

made  oath  that  the  foregoing  affidavit  by     h      subscribed   is 
true. 

Before  me, 

Justice  of  the  Peace. 


Letter  of  Administration  with  Will  Annexed. 

COMMONWEALTH  OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,   of  ,   in  the  County  of  ,  and   Common- 

wealth aforesaid  : 

You  are  appointed  administrat         with  the  will  annexed  of 

the  estate  of  ,   late  of  ,   in   the  County  of  , 

deceased,   testate,   which  will  was  proved  and  allowed   on   the 

day  of  ,  A.  D.  19     ,  by  said  Court,  and  is  now  of 

record  in  this  Court. 

And  you  are  required  to  make  and  return  to  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  the  real  and  personal  estate  of  said  deceased  which  at 


PROBATE    FORMS.  593 

the  time  of  the  making  of  such  inventory  shall  have  come  to 
your  possession  or  knowledge; 

To  administer  according  to  law  and  to  the  will  of  said  de- 
ceased all  the  personal  estate  of  said  deceased  which  may  come 
to  your  possession,  or  that  of  any  person  for  you,  and  also  the 
proceeds  of  any  of  the  real  estate  of  said  deceased  that  may  be 
sold  or  mortgaged  by  you ; 

To  render  upon  oath  a  true  account  of  your  administration  at 
least  once  a  year,  until  your  trust  is  fulfilled,  unless  excused 
therefrom  in  any  year  by  said  Court; 

And  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  published  once  in  each  week  for  three  succes- 
sive weeks  in  the  ,  a  newspaper  publislied  in  ,  and 
return  your  affidavit  of  having  given  such  notice,  with  a  copy 
thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of   said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Hegister. 


Administrator's  Affidavit  of  Notice  of  Appointment  — 
Will  Annexed. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

T,  ,  do  testify  and  say  that         gave  notice  of         ap- 

pointment to  and  acceptance  of  the  trust  of  administrat         with 
the  will  annexed  of  the  estate  of  ,  late  of  ,  in  the 

County  of  ,  deceased,  within  three  months  from  the 

day  of  ,  a.  d.  19     ,  the  time  of  said  appointment, 

by  publishing  a  notification  thereof  once  in  each  week  for  three 
successive  weeks  in  the  ,  a  newspaper  published  in  , 

commencing  on  the  day  of  ,   A.  d.  19     ,    and  the 

following  is  a  true  copy  thereof,  viz. :  — 

Notice  is  hereby  given  that  the  subscriber  has  been  duly 
appointed  administrat  with  the  will  annexed  of  the  estate 
of  ,  late  of  ,  in  the  County  of  ,  deceased,  tes- 

tate, and  has  taken  upon    h     self  that  trust  by  giving  bond  , 

38 


594 


APPENDIX. 


as    the   law    directs.     All    persons    having   demands    upon    the 
estate  of  said  deceased  are  required  to  exhibit  the  same;   and 
all  persons  indebted  to  said  estate  are   called   upon  to  make 
payment  to 
(Address) 

,19     . 

Adm. 

Adm. 

,  ss.  ,  A.  D.  19     .     Personally  appeared  and 

made  oath  that  the  foregoing  affidavit  by     h       subscribed  is 

true. 

Before  me, 

Justice  of  the  Peace. 


Guardian's  Letter. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,    of  ,  in   the    County  of  ,  and  Common- 

wealth aforesaid. 

You  are  appointed  guardian  of  minor  ,  with  full  power 

and  authority  to  take  possession  of  all  real  and  personal  estate 
of  said  ward   ;    and 

You  are  required  to  make  and  return  into  said  Probate  Court, 
within  three  months  from  the  date  hereof,  a  true  inventory  of 
all  the  real  and  personal  estate  of  said  ward  ,  which  at  the  time 
of  the  making  of  such  inventory  shall  have  come  to  your  pos- 
session or  knowledge; 

To  manage  and  dispose  of  all  such  estate  according  to  law 
and  for  the  best  interests  of  said  ward  ,  and  faithfully  to  dis- 
charge your  trust  in  relation  to  such  estate,  and  to  the  custod}', 
education,  and  maintenance  of  said  ward   ; 

To  render,  upon  oath,  a  true  account  of  the  property  in  your 
hands,  including  the  proceeds  of  all  real  estate  sold  or  mort- 
gaged by  you,  and  of  the  management   and  disposition  of  all 


PROBATE   FORMS.  595 

such  property,  at  least  once  a  year,  until  your  trust  is  fulfilled, 
unless  excused  therefrom  in  any  year  by  said  Court; 

At  the  expiration  of  your  trust,  to  settle  your  accounts  in 
said  Court,  or  with  said  ward  or  h  legal  representative,  and 
to  pay  over  and  deliver  all  the  estate  and  effects  remaining  ia 
your  hands,  or  due  from  you  on  such  settlement,  to  the  person 
or  persons  lawfully  entitled  thereto. 

Witness,  Judge  of  said  Court,  at  ,  this  day 

of  ,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  ninety- 

Begister. 


Letter  of  Guardianship  to  Foreign  Guardian. 

[R.  L.  c.  145,  §  19.] 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,   appointed  guardian   of  ,  b?/  the  Court 

for  the  ,  in  said  State  of 

You  are  appointed  guardian   of  the  estate  of   said  in 

this  Commonwealth,  to  wit:  with  authority  to  demand, 

sue  for  and  recover  such  property,  and  to  remove  the  same  out 
of  said  Commonwealth. 

Witness,  ,  Judge  of   said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 


Trustee's  Letter. 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You  are  appointed  trustee   of  the  estate  given  in  trust  for 
the  benefit  of  ,  under  the  will  of  ,  late  of  ,  in 

the  County  of  ,  deceased,   testate,  which   will   was 


596  APPENDIX. 

proved  and  allowed  on  the  day  of  A.  D.  19     ,  by  said 

Court,  and  is  now  of  record  in  this  Court; 

And  you  ai-e  required  to  make  and  return  to  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  real  and  personal  estate  belonging  to  you  as  trustee  , 
which  at  the  time  of  the  making  of  such  inventory  shall  have 
come  to  your  possession  or  knowledge; 

To  manage  and  dispose  of  all  such  estate,  and  faithfully  to 
discharge  your  trust  in  relation  thereto,  according  to  law  and 
the  will  of  said  testat       ; 

To  render,  upon  oath,  a  true  account  of  the  property  in  your 
hands,  and  of  the  management  and  disposition  thereof,  at  least 
once  a  year  until  your  trust  is  fulfilled,  unless  excused  there- 
from in  any  year  by  said  Court;  and 

At  the  expiration  of  your  trust  to  settle  your  account  in 
said  Court,  and  pay  over  and  deliver  all  the  estate  and  effects 
remaining  in  your  hands,  or  due  from  you  on  such  settlement, 
to  the  person  or  persons  entitled  thereto. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Megister. 


Trustee's  Letter,  not  requiring  Inventory. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,   of  ,   in  the  County  of  ,  and  Common- 

wealth aforesaid. 

You  are  appointed  trustee  of  the  estate  given  in  trust  for  the 
benefit  of  ,   under  the   will  of  ,   late  of  ,  in 

said  County  of  ,  deceased,  testate,  ,  which  will  was 

proved  and  allowed  on  the  day  of  ,  A.  d.  19     ,  by 

said  Court,  and  is  now  of  record  in  this  Court; 

And  you  are  required  to  manage  and  dispose  of  all  real  and 
personal  estate  belonging  to  you  as  trustee     ,  and  faithfully  to 


PROBATE    FORMS.  597 

discharge  your  trust  in  relation  thereto,  according  to  law  and 
to  the  will  of  said  testat       ; 

To  render,  upon  oath,  a  true  account  of  the  property  in  your 
hands,  and  of  the  management  and  disposition  thereof,  at  least 
once  a  year,  until  your  trust  is  fulfilled,  unless  excused  there- 
from in  any  year  by  said  Court,  and 

At  the  expiration  of  your  trust,  to  settle  3'our  account  in  said 
Court,  and  pay  over  and  deliver  all  the  estate  and  effects  remain- 
ing in  your  hands,  or  due  from  you  on  such  settlement,  to  the 
person  or  persons  entitled  thereto. 

Witness,  ,  Judge  of   said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 


Notice  of  the  Appointment  of  an  Executor. 

Notice  is  hereby  given  that  the  subscriber    ha      been  duly 
appointed   execut         of  the   will  of  ,    late  of  ,    in 

the  County  of  ,  deceased,    testate,    and  ha     taken  upon 

h     sel         that  trust  by  giving  bond   ,  as  the  law  directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same;  and  all  persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to 

{Address)  ) 

r'""  ■ 

,19    . 


Notice  of  the  Appointment  of  a  Foreign  Executor. 

Notice  is  hereby  given  that  the  subscriber    ha      been  duly 

appointed  execut         of   the  will  of  ,    late   of  ,    in 

the  County  of  ,    deceased,    testate,    and  ha     taken  upon 

h     sel         that  trust  by  giving  bond   ,  and  appointing  , 

of  ,  his  agent,  as  the  law  directs. 


598  APPENDIX. 

All  persons  having  demands  upon  the  estate  of  said  deceased 

are  required  to  exhibit  the  same;  and  all  persons  indebted  to 

said  estate  are  called  upon  to  make  payment  to  the  subscriber. 

{Address)  ) 

>■  Execut        • 

,  19     . 


Notice  of  the  Appointment  of  an  Administrator. 

Notice  is  hereby  given  that  the  subscriber     ha      been  duly 
appointed  administrat         of  the  estate  of  ,  late  of  , 

in  the  County  of  ,    deceased,    intestate,   and     h      taken 

upon    h     sel         that  trust  by  giving  bond  ,  as  the  law  directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same;  and  all  persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to 

{Address) 

Adm. 
,19     . 


Notice  of  Appointment  of  a  Foreign  Administrator. 

Notice  is  hereby  given  that  the  subscriber     ha      been  duly 

appointed  administrat         of  the  estate  of  ,  late  of  , 

in    the    County   of  ,    deceased,     and     ha       taken    upon 

h     sel         that  trust  by  giving  bond  ,  and  appointing  , 

of  ,  his  agent,  as  the  law  directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same;  and  all  persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to  the  subscriber. 

{Address) 

Adm. 
,  19    . 


probate  forms.  599 

Notice  of  Appointment  of  an  Administrator  with   the 
Will  Annexed. 

Notice  is  hereby  given  that  the  subscriber     ha     been  duly- 
appointed  administrat         with  the  will  annexed  of  the  estate  of 
,  late  of  ,  in  the  County  of  ,   deceased,   tes- 

tate, and  ha     taken  upon  h     sel      that  trust  by  giving  bond  , 
as  the  law  directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same ;  and  all  persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to 
(Address) 

Adm. 
.19    . 


Notice  of  Appointment  of  Foreign  Administrator  with 
the  Will  Annexed. 

Notice  is  hereby  given  that  the  subscriber  ha  been  duly 
appointed  administrat  with  the  will  annexed  of  the  estate 
of  ,  late  of  ,  in  the  County  of  ,  deceased,  tes- 

tate, and  ha      taken  upon   h     sel      that  trust  by  giving  bond  , 
and  appointing  ,  of  ,  his  agent,  as  the  law  directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same;  and  all   persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to  the  subscriber. 
(Address) 

Adm. 
,19    . 


Administrator's  Affidavit  of  Notice  of  Appointment. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,  do  testify  and  say  that         gave  notice  of         ap- 

pointment to  and  acceptance  of  the  trust  of  administrat         of 
the  estate  ,  of  ,   late  of  ,   in  the  County  of 


600  APPENDIX. 

,    deceased,    within   three   months   from    the  day 

of  ,  A.  D.  19     ,   the   time   of  said  appointment,   by  pub- 

lishing a  notification  thereof  once  in  each  week  for  three  suc- 
cessive weeks  in  the  ,  a  newspaper  publislied  in  , 
commencing  on  the  day  of  ,  A.  d.  19  ,  and  the 
following  is  a  true  copy  thereof,  viz. :  — 

Notice   is  hereby   given   that   the   subscriber  has  been   duly 
appointed  administrat         of  the  estate  of  ,  late  of  , 

in  the  County  of  ,    deceased,    intestate,    and   has   taken 

upon  h     self  that  trust  by  giving  bond  ,   as  the  law  directs. 
All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same;  and  all  persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to 
(Address) 

,19     . 

Adin. 

Adm. 

,  ss.  ,  A.  D.  19     .     Personally  appeared  and 

made  oath  that  the  foregoing  affidavit  by     h      subscribed  is 

true. 

Before  me, 

Justice  of  the  Peace. 


Administrator's  Affidavit  of  Notice  of  Appointment  — 

Agent. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,  do  testify  and  say  that  gave  notice  of  ap- 

pointment to  and  acceptance  of  the  trust  of  administrat         of 
the  estate  of  ,   late  of  ,   in  the   County  of  , 

deceased,  within  three  months  from  the  day  of  ,  A.  d. 

19       ,  the  time   of   said   appointment,  by  publishing   a 

notification    thereof    once    in    each    week    for    three    successive 
weeks,    in   the  ,  a   newspaper    i)ublished  in  ,    com- 

mencing on  the  day  of  ,  A.  d.  19       ,   and  the  fol- 

lowing is  a  true  copy  thereof,  viz. :  — 


PROBATE    FORMS.  601 

Notice   is  hereby  given  that  the  subscriber  has  been   duly 
appointed  administrat         of  the  estate  of  ,  late  of  , 

in  the  County  of  ,  deceased,  and  has  taken  upon  h      self 

that  trust  by  giving  bond  ,  and  appointing  of  his 

agent,   as  the  law  directs.     All  persons  having  demands  upon 
the  estate  of  said  deceased  are  required  to  exhibit  the  same; 
and  all  persons  indebted  to  said  estate  are  called  upon  to  make 
payment  to  the  subscriber, 
(Address) 

,19       . 

Adm. 

Adin. 

,  ss.  A.  D.   19       .     Personally  appeared 

and  made  oath  that  the  foregoing  affidavit  by    h         subscribed 
is  true. 

Before  me, 

Justice  of  the  Peace. 


Executor's  Affidavit  of  Notice  of  Appointment. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,  do  testify  and  say  that  I  gave  notice  of  my  appoint- 

ment to  and  acceptance  of  the  trust  of  execut  of  the  will 

of  ,    late    of  ,   in    the   County  of  ,    deceased, 

testate,  within  three  months  from  the  day  of  ,  A.  d. 

19       ,   the  time  of    said  appointment,  by  publishing  a 

notification   thereof    once    in    each    week   for   three   successive 
weeks,   in  the  ,  a   newspaper    published    in  ,   com- 

mencing on  the  day  of  A.  D.  19       ,  and  the  follow- 

ing is  a  true  copy  thereof,  viz. :  — 

Notice  is  hereby  given  that  the  subscriber       ha       been  duly 
appointed  execut         of  the  will  of  ,  late  of  ,  in  the 

County   of  ,    deceased,    testate,    and   ha        taken   upon 

h     self  that  trust  by  giving  bond  ,  as  the  law  directs. 


602  APPENDIX. 

All  persons  having  demands  upon  the  estate  of  said  deceased 
are  required  to  exhibit  the  same;  and  all  persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to 
(Address) 

,19      . 

Execut        . 

Execut        . 

,  ss.  A.  D.  19       .     Personally  appeared  , 

and  made  oath  that  the  foregoing  affidavit  by     h       subscribed 
is  true. 

Before  me, 

Justice  of  the  Peace, 


Executors'  Affidavit  of  Notice  of  Appointment — Agent. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,  do  testify  and  say  that  I  gave  notice  of  my  appoint- 

ment to  and  acceptance  of  the  trust  of  execut  of  the  will 

of  ,  late  of  ,  in  the  County  of  ,  deceased,  tes- 

tate,  within  three  months  from  the  day  of  ,  A.  D. 

19       ,    the  time  of    said  appointment,  by  publishing  a 

notification   thereof    once    in   each   week   for   three   successive 
weeks,   in  the  ,   a  newspaper   published  in  ,   com- 

mencing on  the  day  of  ,   A.  D.  19       ,  and  the  fol- 

lowing is  a  true  copy  thereof,  viz. :  — 

Notice  is  hereby  given  that  the  subscriber      ha      been  duly 
appointed  execut         of  the  will  of  ,  late  of  ,  in  the 

County  of  ,  deceased,  testate,  and  ha     taken  upon   h     self 

that  trust  by  giving  bond  ,   and   appointing  ,  of 

his  agent,  as  the  law  directs. 


PROBATE    FORMS.  603 

All     persons    having     demands    upon     the     estate    of     said 
deceased    are    required    to   exhibit  the  same;    and    all    persons 
indebted  to  said  estate  are  called  upon  to  make   payment  to 
the  subscriber. 
(Address) 

,19       . 

Execut        , 

Execut 

,  ss.  ,  A.  D.  19       .     Personally  appeared  , 

and  made  oath  that  the  foregoing  affidavit  by    h      subscribed 
is  true. 

Before  me, 

Justice  of  the  Peace. 


Administrator's  Affidavit  of  Notice  of  Appointment  — 
Will  annexed. 

[This  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,  do  testify  and  say  that         gave  notice  of  ap- 

pointment to  and  acceptance  of  the  trust  of  administrat        with 
the  will  annexed  of  the  estate  of  ,  late  of  ,  in  the 

County  of  ,  deceased,  within  three  months  from  the 

day  of  ,  A.  D.  19       ,  the  time  of  said  appointment, 

by  publishing  a  notification  thereof  once  in  each  week  for  three 
successive  weeks,  in  the  ,  a  newspaper  published  in  , 

commencing  on  the  day  of  ,   A.  d.   19       ,  and  the 

following  is  a  true  copy  thereof,  viz. :  — 

Notice  is  hereby  given  that  the  subscriber  has  been  duly 
appointed  administrat  with  the  will  annexed  of  the  estate 
of  ,  late  of  ,  in  the  County  of  ,  deceased,  tes- 

tate, and  has  taken  upon  h         self  that  trust  by  giving  bond, 
as  the  law  directs.     All   persons    having   demands   upon   the 


604  APPENDIX. 

estate  of  said  deceased  are  required  to  exhibit  the  same;  and 
all  persons   indebted  to  said  estate  are  called  upon  to    make 
payment  to 
(Address) 

,19      . 

Adm. 

Adm. 

,  ss.  ,  A.  D.  19       .     Personally  appeared  , 

and  made  oath  that  the  foregoing  affidavit  by    h         subscribed 
is  true. 

Before  me, 

Justice  of  the  Peace. 


Administrator's  Affidavit  of  Notice  of  Appointment  — 
Will  Annexed  —  Agent. 

[This  notice  should  be  filed  in  the  Registry  of  Probate  immediately  after  giving  the  notice.] 

I,  ,  do  testify  and  say  that         gave  notice  of         ap- 

pointment to  and  acceptance  of  the  trust  of  administrat         with 
the  will  annexed  of  the  estate  of  ,  late  of  ,  in  the 

County  of  ,  deceased,  within  three  months  from  the 

day  of  ,  A.  D.  19     ,  the  time  of  said  appointment, 

by  publishing  a  notification  thereof  once  in  each  week  for  three 
successive  weeks  in  the  ,  a  newspaper  published  in  , 

commencing  on  the  day  of  ,   A.  D.    19     ,   and  the 

following  is  a  true  copy  thereof,  viz. :  — 

Notice  is  hereby  given  that  the  subscriber     ha     been  duly 
appointed  administrat         with  the  will  annexed  of  the  estate  of 
,  late  of  ,   in  the  County  of  ,  deceased,  tes- 

tate, and  ha     taken  upon  h     self  that  trust  by  giving  bond  , 
and  appointing  ,  of  ,  his  agent,  as  the  law  directs. 

All  persons  having  demands  upon  the  estate  of  said  deceased 


PROBATE   FORMS.  605 

are  required  to  exhibit  the  same;  and  all  persons  indebted  to 
said  estate  are  called  upon  to  make  payment  to  the  subscriber. 
(^Address) 

,19     . 

Adm. 

Ad  in. 

,  ss.  ,  A.   D.  19     .      Personally  appeared         and 

made  oath  that  the  foregoing  affidavit  by    h       subscribed  is 
true. 

Before  me, 

Justice  of  the  Peace. 


Administrator's  Inventory. 

(The  administrator  must  file  the  inventory  in  the  Registry  of  Probate  within  three  months 
after  his  appointment.] 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

Greeting  : 

You  are  hereby  appointed  to  appraise  on  oath  the  estate  and 
effects  of  ,  late  of  ,  in  said  County  of  ,  de- 

ceased, which  may  be  in  said  Commonwealth.  When  you  have 
performed  that  service,  you  will  deliver  this  order,  with  your 
doings  in  pursuance  thereof,   to  ,  administrat         of  the 

estate  ,  of  said  deceased,  that     he     may  return  the  same 

to  the  Probate  Court  for  said  County  of 

Witness  my  hand  and  the  seal  of  said  Court  this  day  of 

,  in  the  year  of  our  Lord  one  thousand    nine  hundred 
and 

Register  of  Probate  Court. 

,  ss.  ,  A.  D.   19     .     Then  the  above-named  ap- 

praisers personally  appeared  and  made  oath  that  they  would 
faithfully  and  impartially  discharge  the  trust  reposed  in  them 
by  the  foregoing  order. 
Before  me, 

Justice  of  the  Peace. 


606  APPENDIX. 

Pursuant  to  the  foregoing  order  to  us  directed  we  have  ap- 
praised said  estate  as  follows,  to  wit : 

Amount  of  Personal  Estate,  as  per  schedule  exhibited,  $         . 
Amount  of  Real  Estate,  as  per  schedule  exhibited,         $ 

Appraisers. 


,    ss.  ,    A.   D.    19     .     Then  personally   appeared 

,  the  administrat         of  said  estate,  and  made  oath  that 
the  foregoing  is  a  true  and  perfect  inventory  of  all  the  estate  of 
said  deceased  that  has  come  to     h     possession  or  knowledge. 
Before  me, 

Justice  of  the  Peace, 


Executor's  Inventory. 

[The  executor  must  file  the  inveutory  in  the  Registry  of  Probate  within  three  months  after 
his  appointment.] 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

Greeting  : 

You  are  hereby  appointed  to  appraise  on  oath  the  estate  and 
effects  of  ,   late  of  ,  in  said  County  of  ,   de- 

ceased, which  may  be  in  said  Commonwealth.  When  you  have 
performed  that  service,  you  will  deliver  this  order,  with  your 
doings  in  pursuance  thereof,    to  ,    the  execut         of  the 

last  will  and  testament  of  said  deceased,  that  he  may  return 
the  same  to  the  Probate  Court  for  said  County  of 

Witness  my  hand  and  the  seal  of  said  Court  this  day  of 

,  in  the  year  of   our  Lord  one  thousand  nine  hundred 

and 

Register  of  Probate  Court. 


PROBATE   FORMS.  C07 

,  ss.  ,  A.  D.  19  .  Tlien  the  above-named  ap- 
praisers personally  appeared  and  made  oath  that  they  would 
faithfully  and  impartially  discharge  the  trust  reposed  in  them 
by  the  foregoing  order. 

Before  me, 

Justice  of  the  Peace. 

Pursuant  to  the  foregoing  order  to  us  directed  we  have  ap- 
praised said  estate  as  follows,  to  wit : 

Amount  of  Personal  Estate,  as  per  schedule  exhibited,  $ 
Amount  of  Real  Estate,  as  per  schedule  exhibited,         $ 

Appraisers. 


,  ss.  ,    A.  D.   19     .     Then   personally  appeared 

,  the  execut         of  the  will  of  said  deceased,  and  made 

oath  that  the  foregoing  is  a  true  and  perfect  inventory  of  all  the 

estate  of   said  deceased  that  has  come   to      h      possession  or 

knowledge. 

Before  me. 

Justice  of  the  Peace. 


Guardian's  Inventory. 
COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 


To 


Greeting: 
You  are  hereby  appointed  to  appraise,  on  oath,  the  estate  and 
effects  of  ,  of  ,  in  said  County  of  ,  which  ma}'' 

be  in  said  Commonwealth.  When  you  have  performed  that 
service,  you  will  deliver  this  order,  with  your  doings  in  pursu- 
ance thereof,  to  ,  guardian  of  said  ward  ,  that  he  may 
return  the  same  to  the  Probate  Court  for  said  County  of 

"Witness  my  hand  and  the  seal  of  said  Court,  this  day 

of  ,  in  the  year  of  our  Lord  one  thousand  nine  hundred 

and 

Register  of  Probate  Court. 


608  APPENDIX. 

,   ss.  ,    A.    D.    19       .      Then   the   above-named 

appraisers  personally  appeared  and  made  oath  that  they  would 
faithfully  and  impartially  discharge  the  trust  reposed  in  them 
by  the  foregoing  order. 
Before  me, 

Justice  of  the  Peace. 

Pursuant   to   the   foregoing   order   to  us  directed,    we   have 
appraised  said  estate  as  follows,  to  wit :  — 
Amount  of  Personal  Estate,  as  per  schedule  exhibited,   $ 
Amount  of  Real  Estate,  as  per  schedule  exhibited,  $ 

Appraisers. 

,  ss.  ,  A.  D.  19       .     Then  personally  appeared 

,  the   guardian  of  said  ward   ,  and  made  oath  that  the 

foregoing  is  a  true  and  perfect   inventory  of  all  the  estate  of 

said  ward    that  has  come  to     h       possession  or  knowledge. 

Before  me, 

Justice  of  the  Peace. 


Trustee's  Inventory. 
COMMONWEALTH    OF   MASSACHUSETTS. 
,  ss.  Probate  Court. 


To 


Greeting  : 
You   are   hereby  appointed  to  appraise,  on  oath,  the  estate 
and  effects  of  ,  late  of  ,  in  said  County  of  , 

deceased,  which  m&y  be  in  said  Commonwealth,  and  which  said 
deceased  gave  in  h      will  in  trust  for  the  benefit  of 
When  you  have  performed  that   service    3'ou  will  deliver  this 
order,   with  your  doings    in    pursuance   thereof,  to  ,  the 

trustee     under  the  will  of  said  deceased,  that    he     may  return 
the  same  to  the  Probate  Court  for  said  County  of 

Witness  my  hand  and  the  seal  of  said  Court,  this  day 

of  ,  in  the  year  of  our  Lord  one  thousand    nine   hundred 

and 

Megister  of  Probate  Court. 


PROBATE   FORMS.  609 

,   8S.  ,   A.   D.   19       .      Then  the   above-named 

appraisers  personally  appeared  and  made  oath  that  they  would 
faithfully  and  impartially  discharge  the  trust  reposed  in  them 
by  the  foregoing  order. 
Before  me, 

Justice  of  the  Peace. 

Pursuant   to    the   foregoing   order   to   us   directed,   we   have 
appraised  said  estate  as  follows,  to  wit :  — 
Amount  of  Personal  Estate,  as  per  schedule  exhibited,  $ 
Amount  of  Real  Estate,  as  per  schedule  exhibited,  $ 

>•  Appraisers. 

,  ss.  ,  A.  D.  19       .     Then  personally  appeared 

,  the  trustee    under  the  will  of  said  deceased,  and  made 

oath  that  the  foregoing  is  a  true  and  perfect  inventory  of  all 

the  estate  of  said  deceased,  given  and  devised  as  aforesaid,  that 

has  come  to  possession  or  knowledge. 

Before  me. 

Justice  of  the  Peace. 


Petition  fob  Revocation  of  Warrant  for  Appraisal, 
AND  for  New  Warrant. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully   represents  ,   administrat       of  the  estate 

of  ,   late  of  ,  in  said  County  of  ,    deceased, 

,  that  at  a  Probate  Court  holden  at  ,  in  and  for 

said  county,   on  the  day  of  ,  A.  D.  19     ,  a  warrant 

was  issued  for  the  appraisal  of  the  estate  of  said  deceased,  — 
that  said  warrant  has  been  lost  or  mislaid,  and  prays  that  said 
warrant  may  be  revoked  and  a  new  warrant  issued  for  the 
appraisal  of  said  estate. 

Dated  this  day  of  ,  A.  d.  19       . 

39 


610  APPENDIX. 


Insolvency. 

[T)ie  executor  or  administrator  must  present  with  this  petition  a  list  of  all  persons  claiming 
to  be  creditors  of  the  estate  so  far  as  known  to  him.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully   represents  ,    administrat  of    the 

estate  of  ,  late  of  ,  in  said  County  of  , 

deceased,  appointed  on  the  day  of  A.  d.  19       ,  that 

within  three  months  from  his  said  appointment  he  caused 

notice  thereof  to  be  given  as  ordered  by  the  Court,  that  the 
debts  claimed  as  owed  by  the  deceased  at  the  time  of  his  death, 
according  to  the  list  hereto  appended,  amount  to  $ 

The  necessary  funeral  expenses,  to  $ 

The  allowance  by  the  Court  for  necessaries  to  the 

widow,  to  $ 

The  charges  of  administration,  including  future  prob- 
able charges,  to  $ 
Amounting  in  the  whole  to  the  sum  of  $ 
That  all  the  estate  of  the  deceased  known  to  be  charge- 
able with  the  payment  thereof  is  as  follows,  viz. : 
Real  Estate  not  exceeding  in  value,                       S 
Personal  Estate  not  exceeding  m  value,                $ 
and  other  Personal  Estate  not  mentioned  in  the 
Inventory,                                                                  $ 

Balance,  $ 

And  your  petitioner    believe  .  that  said  estate  will  probably 
be  insolvent,  for  the  reason  that  ;     he     therefore  pray 

that  two  or  more  fit  persons  be  appointed  commissioners  to 
receive  and  examine  all  claims  of  creditors  against  the  estate, 
and  return  a  list  of  all  claims  laid  before  them,  with  the  sum 
allowed  on  each  claim,  pursuant  to  the  law  in  such  case  made 
and  provided. 

Dated  this  day  of  ,  A.  D.  19 

Adm. 


PROBATE    FORMS.  611 

,  ss.  ,  A.  D.   19       .     Then  personally  appeared 

said  ,  and  made  oath  that  the  above   is  a  correct  repre- 

sentation of  the  probable  condition  of  said  estate,  according  to 
the  best  of     h       knowledge  and  belief. 
Before  me, 

Justice  of  the  Peace. 


Order  to  Administrator  of  Insolvent  Estate  to  Notify 
Creditors  to  Present  Claims. 

[R.  L.  c.  142,  §  5.] 

COMMONWEALTH   OF  MASSACHUSETTS. 
,  ss.  Probate  Court. 

To  ,  administrat       of  the  estate  of  ,  late  of  , 

in  said  County,  deceased,  intestate,  represented  insolvent  : 

You  are  hereb}'"  ordered  to  notify  the  creditors  of  said  insol- 
vent estate  that  the  Court  will  receive,  hear,  and  examine  all 
claims  of  creditors  against  said  insolvent  estate  at  the  Probate 
Court  to  be  liolden  at  ,  in  and  for  said  County,  on  , 

the  day  of  ,   a.  d.    10     ,   and  on  ,  the 

day  of  ,   A.  D.   19     ,  at  o'clock  in  the  noon, 

respectively,  that  they  may  then  and  there  present  and  prove 
their  claims. 

Six  months  from  the  date  hereof  are  allowed  to  creditors 
within  which  to  present  and  prove  their  said  claims. 

And  you  are  ordered  to  give  at  least  seven  days'  written 
notice,  by  mail  or  otherwise,  to  all  known  creditors  of  the 
time  and  place  of  each  of  said  hearings,  and  cai;se  notices  to 
be  published  in  the  ,  a  newspaper  published  in  , 

once  in  each  week  for  three  successive  weeks  before  said  first 
hearing. 

Claims  allowed  may  be  adjusted  by  finding  the  net  amount 
due  ,  the  date  of  death  of  said  deceased. 

You  will   make  return  hereof,   with  your  doings  hereon,  on 


612  APPENDIX. 

or  before  the  date  of  said  first  hearing             ,  day  of             , 
A.  D.   19      . 

Witness,  ,  Esquire,  Judge  of  said  Court,  at             ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Megister. 

I  have  served  the  foregoing  order  as  therein  ordered. 

,    ss.  ,    A.  D.    19     .     Then  personally   appeared 

,  and  made  oath  to  the  truth  of  the  above  return  by  him 
subscribed. 

Before  me, 

Justice  of  the  Peace. 


Form  of  Administrator's  Notice  to  Creditors  of 
Insolvent  Estate. 

Estate  of  ,  late  of  ,  in  the  Counts/  of  ,  deceased, 

represented  insolvent  : 

The  Probate  Court  for  said  County  will  receive  and  examine 

all   claims   of   creditors   against   the   estate  of   said  ,  and 

notice  is  hereby   given  that  six  months  from  the  day  of 

,    A.  D.    19     ,   are   allowed   to   creditors   to   present   and 

prove  their  claims  against  said  estate,  and  that  the  Court  will 

sit  to  examine  the  claims  of  creditors  at  ,  on  the 

day  of  ,  A.  D.   19     ,   at  o'clock   in   the  noon, 

and  at  ,  on  the  day  of  ,  A.  d.   19     ,  at 

o'clock  in  the  noon. 

Administrat         . 


PROBATE    FOKMS.  613 

Insolvent  Estate  —  Warrant  to  Commissioners. 

COMMONWEALTH   OF    MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You  are  appointed  commissioners  to  receive  and  examine  all 
claims  of  creditors  against  the  estate  of  ,  late  of  ,  in 

said  County  deceased. 

You  are  to  appoint  convenient  times  and  places  for  your  meet- 
ings, first  being  sworn  to  the  faithful  discharge  of  your  duties, 
and  by  mail  or  otherwise  give  the  administrat  and  all  known 
creditors  (whose  names  and  residences  he  required  to  furnish 
to  you  fourteen  days  before  your  first  meeting)  at  least  seven 
days'  written  notice  of  the  time  and  place  of  each  meeting,  and 
cause  notice  to  be  published  once  in  each  week  for  three  succes- 
sive weeks  in  the  ,  a  newspaper  published  in  ,  the 
last  publication  to  be  one  day  at  least  before  your  first  meeting. 
You  may  examine  any  claimant  on  oath  (which  either  of  you 
may  administer),  and  if  he  refuses  to  take  such  oath,  or  to  an- 
swer fully  all  questions,  you  may  disallow  h  claim.  If  a 
creditor  has  security,  you  will  deduct  the  value  thereof  from  the 
amount  of  the  claim,  and  allow  the  balance  only;  estimating 
such  value  yourselves,  unless  the  same  is  determined  by  a  sale 
of  the  security  by  agreement  between  the  creditor  and  adminis- 
trat ;  but  if  the  creditor  waives  his  security,  he  may  prove 
his  whole  claim;  in  either  case  you  will  state  the  facts  in  your 
report.  Six  mouths  from  the  date  hereof  are  allowed  to  the 
creditors  to  present  and  prove  their  claims;  after  which  time 
you  will  return  to  said  Court,  with  this  commission,  a  list  of  all 
claims  presented,  whether  allowed  or  not,  with  the  sums  you 
allow  on  each,  computing  the  net  amount  due  ,  A.  D.  19  , 
the  time  of  the  death  of  the  deceased,  with  interest  on  claims 
expressly  bearing  interest,  and  rebate  of  interest  on  claims  not 
on  interest  and  not  then  matured,  stating  in  separate  classes : 
First,  debts  entitled  to  a  preference  under  the  laws  of  the 
United  States;   Second,  public  rates,  taxes,  and  excise  duties; 


614 


APPENDIX. 


Third,  wages  or  compensation  to  an  amount  not  exceeding  one 
liuudreJ  dollars,  due  to  a  clerk,  servant,  or  operative  for  labor 
performed  within  one  year  next  preceding  the  death  of  such 
deceased  person,  or  for  such  labor  so  performed  for  the  recovery 
of  payment  for  which  a  judgment  has  been  rendered;  and 
Fourth,  debts  due  all  other  persons,  —  specifying  in  separate 
lists,  also,  those  due  from  the  deceased  individually,  and  as  a 
member  of  any  partnership. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 

,  ss.  ,   A.  D.    19     .      Then   personally  appeared 

the  above-named  commissioners,  and  made  oath  that  they  would 
faithfully  and  impartially  execute  the  duties  assigned  them  by 
the  foregoing  warrant. 

Before  me, 

Justice  of  tlie  Peace. 


Insolvent  Estate  —  Report  of  Commissioners. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

The  subscribers,  commissioners  appointed  by  said  Court  to 
examine   all   claims   of    creditors    against   the   estate   of  , 

late   of  ,  in  said  County,    deceased,  respectfully  report  as 

follows: 

Having  first  been  sworn,  and  having  given  notice  according 
to  law  and  the  order  of  Court,  we  received  and  examined  all 
such  claims  presented  to  us,  and  the  following  is  a  true  list 
thereof,  and  of  the  suras  allowed  on  each: 


Names  of 
Claimants. 


[State  any  finding  of  Fact 

which  may  show  that  a 

Claim  is  preferred.] 

Nature  of  Claims. 


Sums  Claimed. 


Sums  Allowed. 


Sums 
Disallowed. 


PROBATE   FORMS.  6I5 


Form   of  Commissioneks'   Notice  to  Creditors  of  Insol- 
vent Estate. 

Estate  of  ,  late  of  ,  in  the  County  of  ,  deceased, 

ix/j resented  insolvent : 

The  subscribers  having  been  appointed  by  the  Probate  Court 
for  said  County,  commissioners  to  receive  and  examine  all 
claims   of    creditors   against   the   estate   of  said  ,    hereby 

give    notice    that    six    months    from    the  day   of  , 

A.  D.  19  ,  are  allowed  to  creditors  to  present  and  prove  their 
claims  against  said  estate,  and  that  they  will  meet  to  examine 
the    claims   of    creditors   at  ,    on   the  day   of 

next,  at  o'clock  in  the  noon. 

,  ,  A.  D.  19     . 

>-  Commissioners. 


New  Commissioner  of  Insolvent  Estate  and  Extending 
Time  for  Allowing  Claims. 

[R.  L.  c.  142,  §§  6, 9.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 

Respectfully   represents  ,  that  were   appointed 

commissioners  upon  the  insolvent  estate  of  ,  late  of  , 

in  said  County  of  ,  deceased,  ,  testate,  on  the 

day  of  A.  D.  19       ,  and  that  said  has 

Wherefore   your    petitioner  prays   that   a   new   commissioner 
may  be  appointed  in  place  of  said  ,  and  that  the  time  for 

taking  proof  of  claims  and  making  returns  thereof 

may  be  extended. 

Dated  this  day  of  ,  A.  D.  19 


616  APPENDIX. 

Insolvent  Estate  —  Order  for  Distribution. 
COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  o.dministrat        of  the  estate  of  ,  late  of 

in  said  County,  deceased. 

You  are  ordered  to  distribute  the  balance  of  dollars,   in 

your  bauds,  according  to  your  account  allowed  by  said  Court,  on 
the  day  of  A.  D.  19       ,  by  paying  forthwith  to  the 

persons  and  in  the  amounts  hereinafter  specified,  who,  it  appears 
to  the  Court,  are  the  creditors  of  said  deceased,  whose  claims 
have  been  finally  allowed,  and  are  entitled  thereto  in  such  pro- 
portions, retaining  in  your  hands  dollars  thereof  for  future 
charges. 

You  are  ordered  to  give  written  notice  by  mail  or  otherwise, 
to  each  of  said  persons  of  the  amount  due  him  or  her,  and  if 
any  of  said  sums  remain  for  six  months  unclaimed,  you  are 
directed  to  deposit  the  same  in  the  Savings  ,  in  the 

name  of  the  Judge  of  said  Court,  for  the  time  being,  to  accu- 
mulate for  the  persons  entitled  thereto. 

Within  one  year  after  the  date  hereof,  you  are  required  to 
present  to  this  Court,  under  oath,  a  true  account  of  the  pay- 
ments made  by  you,  and  of  the  amounts  deposited  as  aforesaid, 
together  with  the  original  certificates  or  other  evidence  of  such 
dejiosit,  and  also  to  return  this  order  and  the  receipts  of  the 
persons  whom  you  have  paid. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand   nine   hun- 

dred and  . 

Register. 


PROBATE   FORMS.  617 

Insolvent  Estate  —  Report  on  Order  for  Distribution. 


The  names  and  amounts  to  be    distrib-    We  severally  acknowledge  the  re- 
j  .  .  ,  J-   1 1  ceipt  01  the  sums  set  against  our 

uted,  as  aioresaKi,  are  as  lollows:  respective  names. 


Names  of  persons  to  be  paid. 


I  hereby  certify  that  I  have  paid,  according  to  the  foregoing 
order,  all  the  before-named  persons  the  sums  to  which  they  are 
entitled,  as  appears  by  their  respective  receipts  or  vouchers, 
except   the    sums   due    to  ,  amounting   to  dollars, 

which  I  have  deposited  in  the  Savings  ,  according  to 

the  order  of  Court,  and  return  the  evidence  thereof  herewith. 


Rule  to  Auditor. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

A.  D.  19 

In   the   matter  of  the  account   of  ,  of  the 

of  ,  late  of  ,  in  said  County  of  ,  deceased. 

It    is    ordered    that  ,  of  ,  be,    and  he  hereby  is, 

appointed  auditor  in  the  above-mentioned  matter,  to  hear  the 
parties  interested,  examine  vouchers  and  evidence,  and  report 
upon  the  same  to  this  Court. 

Judge  of  Probate  Court. 


Petition  to  Render  Inventory  and  Account. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully  represents  ,   of  ,   in  the   County  of 

,  that  by  a  decree  of  said  Court  made  on  the  day 


,618  APPENDIX. 

of  ,  A.  D.  19       ,  ,  of  ,  in  the  County  of  , 

was  appointed  ,  and  gave  bond  for  the  due  performance  of 

said  trust,  and  that  h  ha  neglected  to  file  an  inventory 
and  to  render  an  account  as  required  by  law  and  the  condition 
of    h        bond. 

Your  petitioner  further  represents  that  h  is  a  party 
interested  in  the  due  administration  of  said  estate. 

Wherefore    h        pray    that  the  said  ^i^ay  be  ordered  to 

render  to  the  Court  an  inventory  of  said  estate  and  an  account 
of    h       administration  thereof. 

Dated  this  ,  day  of  ,  a.  d.  19 


Order  to  Eender  Inventory    or    Account. 
COMMONWEALTH   OF   MASSACHUSETTS. 
,  ss.  Probate   Court. 

Estate  of  ,  deceased^  to  ,  of  said  deceased: 

You  are  hereby  ordered  to  render  to  this  Court  an  inventory 

account  of  your  administration  of  said  estate  ,  on 

or  before  the  day  of  ,   a.  d.   19     ,   and   in  default 

thereof  to  show  cause  therefor. 

Witness  my  hand  and  the  seal  of  said  Court  this  day  of 

,  in   the  year  of  our   Lord  one   thousand  nine  hundred 

and 

Judge  of  Probate  Court. 

I  have  served  the  foregoing  order  on  the  above-named 
by  giving     h       in  hand  an  attested  copy  thereof. 

,  ss.  ,  A.  D.   19     .      Personally  appeared  , 

and   made   oath   to    the   truth   of   the   above   return  by     h 

subscribed. 

Before  me, 

Justice  of  the  Peace. 


PKOBATE   FOKMS.  619 


Distribution  —  Widow  —  Husband  —  Next  of  Kin  — 
Warrant. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  adminislrat         of  the  estate  of  ,  late  of  , 

in  the  County  of  ,  deceased  : 

You  are  ordered  to  distribute  the  balance  of  dollars,  in 

your  hands,  according  to  your  account  allowed  by  said  Court, 
on  the  day  of  ,  A.  D.  19     ,  by  paying  forthwith  to 

tlie  persons,  and  in  the  amounts  hereinafter  s{)ecified,  who,  it 
ajjpears  to  the  Court,  are  the  widow  —  husband  —  and  next  of 
kin  of  said  deceased,  and  entitled  thereto  in  such  propor- 

tions, retaining  in  your  hands  dollars  thereof,  for  future 

charges. 

You  are  ordered  to  give  written  notice,  by  mail  or  otherwise, 
to  each  of  said  persons  of  the  amount  due  him  or  her,  and  if  any 
of  said  sums  remain  for  six  months  unclaimed,  you  are  directed 
to  deposit  the  same  in  the  Savings  ,  in  the  name  of 

the  Judge  of  said  Court,  for  the  time  being,  to  accumulate  for 
the  persons  entitled  thereto. 

Within  one  year  after  the  date  hereof,  you  are  required  to 
present  to  this  Court,  under  oath,  a  true  account  of  the  pay- 
ments made  by  you,  and  of  the  amounts  deposited  as  aforesaid, 
together  with  the  original  certificates  or  other  evidence  of  such 
deposits,  and  also  to  return  this  order  and  the  receipts  of  the 
persons  whom  you  have  paid. 

Witness,  ,  Judge  of  said  Court,  at  ,   this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 


620 


APPENDIX. 


Distribution  —  Report. 


The  names  and  amounts  to  be  distrib- 
uted, as  aforesaid,  are  as  follows  : 


Names  of  persons  to  be  paid. 


We  severally  acknowledge  the  re- 
ceipt of  the  sums  set  against 
our  respective  names. 


I  hereby  certify  that  I  have  paid,  according  to  the  foregoing 
order,  all  the  before-named  persons  the  sums  to  which  they  are 
entitled,  as  appears  by  their  respective  receipts,  except  the 
sums  due  to  ,  amounting  to  dollars,  which  I  have 

deposited  in  the  Savings  ,  according  to  the  order  of 

Court,  and  return  the  evidence  thereof  herewith. 

Adm. 


Distribution  —  Intestate  Estate. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  that  there  is  a  balance  of  the 

estate  of  ,  late  of  ,  in  said  County  of  ,  deceased, 

intestate,  in  the  hands  of  h  administrat  ,  which  remains  to 
be  distributed  among  h  widow  and  next  of  kin,  whose  names, 
places  of  residence,  and  relationship  to  the  deceased  are  sup- 
posed, or  claimed  to  be,  as  follows: 


Name. 


Residence. 


Relationship. 


Share. 


Wherefore  your  petitioner  pray  that  distribution  of  such 
balance  may  be  decreed  by  the  Court  among  such  persons  as 
may  be  proved  to  be  entitled  thereto,  according  to  law. 

Dated  this  day  of  ,  A.  D.  19     . 


PROBATE  FORMS.  621 

,  ss.  ,  A.  D.  19     .      Then   personally   appeared 

,  and  made  oath  to  the  truth  of  the  above  representation, 
according  to  the  best  of     h       knowledge  and  belief. 
Before  me, 

Justice  of  the  Peace. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


Administrator's  Account. 

[RuLB  IX.  "  No  executor  or  adminiBtrator  shall  receive  any  compensation  by  way  of  a 
commission  upon  the  estate  by  him  administered  but  shall  be  allowed  his  reasonable 
expenses  incurred  in  the  execution  of  his  trust,  and  such  compensation  for  his  services  as 
the  Court  in  each  case  may  deem  just  and  reasonable.  The  account  shall  contain  an 
itemized  statement  of  the  expenses  incurred,  and  shall  be  accompanied  by  a  statement  of 
the  nature  of  the  services  rendered,  and  of  such  other  matters  as  may  be  necessary  to 
enable  the  Court  to  determine  what  compensation  is  reasonable."] 

The  account  of  ,  administrat       of   the   estate  of 

,  late  of  ,  in  the  County  of  ,  deceased. 

This  account  is  for  the  period  beginning  with  the  day 

of  ,  A.  D.  19     ,  and  ending  with  the  day  of  , 

A.  D.  19     . 

Said  accountant    charge    h       sel        with  the  several 
amounts  received,  as  stated  in  Schedule  A,  here- 
with exhibited,  $ 
and  ask  to  be  allowed  for  sundry  payments  and  charges, 
as  stated  in  Schedule  B,  herewith  exhibited,  $ 
Balance,    as    stated    in    Schedule    C,    herewith 
exhibited,                                                                      $ 

Administrat 


621 


APPENDIX. 


The  undersigned,  being  all  persons  interested,  having 

examined  the  foregoing  account,  request    that  the  same  may  be 
allowed  without  further  notice. 

[Citation  by  delivering  a  copy  to  all  persons  interested  iu  the  estate,  four- 
teen days  at  least  before  return  day  ;  or  by  publication  once  a  week  for  three 
successive  weeks,  the  last  publication  to  be  at  least  one  day  before  return  day, 
and  by  mailing,  post-paid,  a  copy  to  all  known  persons  interested  in  the 
estate,  seven  days  at  least  before  return  day.] 


[Number  the  items.] 

Schedule  A. 


N»unber 
of  Item. 


Date. 


Amount  of  personal  property,  accord- 
ing to  inventory,  or 
Balance  of  next  prior  account, 
Amounts  received  from  income,  gain 
on  sale  of  personal  property  over 
appraised  value,  and  from  other 
property,  as  follows: 


Dolls.  Ct8. 


Schedule  B. 


Number 
of  Item. 


Date. 


Showing  payments,  charges,  losses,  and 
distributions, 


Dolls,  cu. 


PROBATE  FORMS.  623 


Schedule  C. 

[TUb  schedule  contains  all  items  of  personal  property  now  in  possesdon  of  the 
accountant,  including  cash.] 

,  ss  ,  A.  D.  19     .     Then  appeared  the  within- 

named  and  made  oath  that  the  within  account  is  just  and 

true. 

Before  me, 

Justice  of  the  Peace. 


Executor's  Account. 

The  account  of  ,  execut       of  the  last  will  and 

testament  of  ,   late  of  ,   in  the   County  of 

deceased. 

This  account  is  for  the  period  beginning  with  the  day 

of  ,  A.D.  19     ,  and  ending  with  the  day  of  , 

A.D.  19      , 

Said  accountant    charge     h     sel  with  the  several 

amounts  received,    as  stated  in  Schedule  A,  here- 
with exhibited,  $ 
and   asks   to   be   allowed    for   sundry   payments   and 
charges,  as  stated  in  Schedule  B,  herewith  exhibited,     $ 
Balance,  as  stated  in  Schedule  C,  herewith  ex- 
hibited, S 

Executor. 

The  undersigned,  being  all  persons  interested,  having 

examined  the  foregoing  account,  request     that  the  same  may  be 
allowed  without  further  notice. 

[Citation  by  delivering  a  copy  to  all  persons  interested  in  the  estate,  four- 
teen days  at  least  before  return  day ;  or  by  publication  once  a  week  for  three 
Buccessive  weeks,  the  last  publication  to  be  one  day  at  least  before  return  day, 
and  by  mailing,  post-paid,  a  copy  to  all  known  persons  interested  in  the 
estate,  seven  days  at  least  before  return  day.] 


624 


APPENDIX. 


[Number  the  items.] 

Schedule  A. 


Number 
of  Item. 


Date. 


Dolls.  Cts. 


Amount  of  personal  property,  accord- 
ing to  inventory,  or 
Balance  of  next  prior  account, 
Amounts  received  from  income,  gain 
on  sale  of  personal  property  over 
appraised  value,  and  from  other 
property,  as  follows : 


Schedule  B. 


Number 
of  Item. 


Date. 


Dolls.  CtB. 


Showing  payments,  charges,  losses,  and 
distributions, 


Schedule  C. 

[This  schedule  contains  all  items  of  personal  property  now  in  possession  of  the 
accountant,  including  cash.] 

,  ss.  ,  A.D.  19     .     Then  appeared  the  within- 

named  and  made  oath  that  the  within  account  is  just  and 

true. 

Before  me, 

Justice  of  the  Peace. 


PROBATE   FORMS.  625 

Trustee's  Account. 

The  account  of  ,  trustee  under  the  will  of  , 

late  of  ,  in  the  County  of  ,  deceased,  for  the  benefit 

of 

This  account  is  for  the  period  beginning  with  the  day 

of  ,  A.D.  19     ,  and  ending  with  the  day  of  , 

A.D.  19      . 


Said  accountant  charge  h  sel  with  the  several 
amounts  received,  on  account  of  principal,  as  stated 
in  Schedule  A,  herewith  exhibited, 
and  asks  to  be  allowed  for  sundry  payments  and 
charges,  on  account  of  principal,  as  stated  in  Sched- 
ule B,  herewith  exhibited. 

Balance  of  principal  invested,  as  stated  in  Sched- 
ule C,  herewith  exhibited, 
h     also  charges     h     sel        with  the  several  amounts 
received,  on  account  of  income,  as  stated  in  Schedule 

D,  herewith  exhibited, 

and   asks    to   be    allowed   for   sundry   payments    and 
charges,  on  account  of  income,  as  stated  in  Schedule 

E,  herewith  exhibited, 
Balance  of  income, 


Trustee. 


The  undersigned,   being  all  persons  interested,  having 

examined  the  foregoing  account,  request     that  the  same  may  be 
allowed  without  further  notice. 

[Citation  by  delivering  a  copy  to  all  persons  interested  in  the  estate,  four- 
teen days  at  least  before  return  day  ;  or  by  publication  once  a  week,  for  three 
successive  weeks,  the  last  publication  to  be  one  day  at  least  before  return  day, 
and  by  mailing,  post-paid,  a  copy  to  all  known  persons  interested  in  the 
estate,  seven  days  at  least  before  return  day.] 


40 


626 


APPENDIX. 


[Number  the  items.] 

Schedule  A. 


Number 
of  Item. 


Date. 


Amount  of  personal  property,  accord- 
ing to  inventory,  or 

Balance  of  principal,  according  to  next 
prior  account, 

Amounts  received  on  account  of  prin- 
cipal, gain  on  sale  of  personal  prop- 
erty, and  from  other  property,  as 
follows : 


Schedule  B. 


Dolls.  CtB. 


Number 
of  Item. 


Date. 


Amounts   paid    out    and    charges,    on 
account  of  principal,  as  follows : 


Schedule  C. 

[This  schedule  contains  statement  showing  how  principal  is  invested.] 

Schedule  D. 


Dolls.  Cts. 


Number 
of  Item. 


Date. 


Dolls.  Ota. 


Balance  of  income  according  to  next 
prior  account, 

Amounts  received  on  account  of  in- 
come, as  follows: 


PROBATE  FORMS. 


627 


Schedule  E. 


Number 
of  Item. 


Date. 


SS. 


Amounts    paid    out    and    charges    on 
account  of  income,   as  follows : 


,  A.  D.  19     .     Then  appeared  the  within- 


DoIlB.  Ct8. 


named 
true. 


and  made  oath  that  the  within  account  is  just  and 
Before  me, 


Justice  of  the  Peace. 


Guardian's  Account. 


of 


The  account  of  ,  guardian  of 

the  County  of  ,  minor. 

This  account  is  for  the  period  beginning  with  the 
of  ,  A.  D.  19     ,  and  ending  with  the  day  of 

A.  D.  19     . 

Said  accountant     charge     h     sel       with  the  several 
amounts  received,  as  stated  in  Schedule  A,  herewith 
exhibited, 
and   asks    to   be   allowed    for    sundry   payments    and 
charges,  as  stated  in  Schedule  B,  herewith  exhibited, 
Balance,  as  stated  in   Schedule  C,  herewith  ex- 
hibited, 


day 


The  undersigned,  being 
the  foregoing  account,  request 
without  further  notice. 


Guardian. 

interested,   having  examined 
that  the  same  may  be  allowed 


[Citation  by  delivering  a  copy  to  all  persons  interested  in  the  estate,  four- 
teen days  at  least  before  return  day ;  or  by  publication  once  a  week  for  tliree 
successive  weeks,  the  last  publication  to  be  one  day  at  least  before  return  day, 
and  by  mailing,  post-paid,  a  copy  to  all  known  persons  interested  in  the 
estate  seven  days  at  least  before  return  day.] 


628 


APPENDIX. 


[Number  the  items.] 

Schedule  A. 


Number 
of  Item. 


Date. 


DoUs.  Cts. 


Amount  of  personal  property,  accord- 
ing to  inventory,  or 
Balance  of  next  prior  account. 
Amounts  received  from  income,  gain 
on  sale  of  personal  property  over 
appraised  value,  and  from  other 
property,  as  follows: 


Schedule  B. 


Number 
of  Item. 


Date. 


DoUs.  Cts. 


Showing  payments,  charges,  losses,  and 
distributions. 


Schedule  C. 

[This  schedule  contains  all  items  of  personal  property  now  in  possession  of  the 
accountant,  including  cash.] 


named 
true. 


ss.  ,  A.D.  19     .     Then  appeared  the  within- 

and  made  oath  that  the  within  account  is  just  and 

Before  me, 

Justice  of  the  Peace. 


pkobate  forms.  (529 

'  Compromise  —  Arbitration  —  Petition. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  of  ,   in  the  County  of 

,    administrat         execut         guardian      trustee      of   the 
estate  of  ,  late  of  ,  in  the  County  of  , 

deceased,  that  there  is  a  demand  the  estate  repre- 

sented by     h      as  such  ,  of  ,  described  as  follows : 

that  it  is  probable  the  same  can  be  adjusted  by  compromise  on 
the  following  terms: 

and  it  is  for  the  interest  of  said  estate  that  it  be  done,  or 

that  it  be  submitted  to  arbitration. 

Wherefore  he  prays  that  he  may  be  authorized  to  adjust  said 
demand  by  compromise,  or  submit  it  to  arbitration. 

Dated  this  day  of  ,  a.  d.  19     . 


Petition  for  Sale  of  Real  Estate  —  Executors  — 
Administrators.     [Public] 

[A  description  of  the  land  to  be  sold,  sufficient  to  identify  it,  stiould  be  given.] 

To  the  Honorable  the  Judije  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  of  the  of  ,  late  of 

,  in  said  County  of  ,  deceased. 

That  the  debts  due  from  the  deceased,  as  nearly 

as  they  can  now  be  ascertained,  as  shown  by  the 
list  herewith  filed,  amount  to  % 

The  legacies  given  in  said  will  to  $ 

And  the  charges  of  administration  to  $ 

Amounting  in  all  to  $ 

That  the  value  of  the  personal  estate  in  the  hands  of 
the  petitioner  (exclusive  of  the  widow's  allowance)  is     $ 

That  the  personal  estate  is,  therefore,  insufficient  to 
pay  the  debts  —  legacies  —  of  the  deceased  and  the 
charges  of  administi-ation,  and  it  is  necessary  for 
that  purpose  to  sell  some  part  of  the  real  estate  to 
raise  the  sum  of  $ 


g30  APPENDIX. 

That  the  real  estate  which  the  petitioner  pi'oposes  to  sell  con- 
sists of  the  following  parcel       ,  to  wit: 

and  that  by  a  partial  sale  thereof  the  residue  would  be 

greatly  injured. 

Wherefore  your  petitioner  prays  that  he  may  be  licensed  to 
sell  the  whole  of  said  parcel  at  public  auction  for  the  payment  of 
said  debts  —  lef/uotes  —  and  charges  of  administration. 

Dated  this  day  of  ,  a.  d.  19     . 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  in  the  estate  four- 
teen days  at  least  before  return  day,  or  by  publishing  the  same  once  a  week 
for  three  successive  weeks,  the  last  publication  to  be  one  day  at  least  before 
return  day. 


COMMONWEALTH  OF  MASSACHUSETTS. 
,  ss.  Probate  Court. 

A  list  of  debts  which  appear  to  be  due  from  the  estate  of 

,  late  of  ,  in  said  County  .  deceased. 


Name  of  Creditor.  p^i^^e^of  Busi^eT'    Nature  of  Debt.       Security.  Amount. 


Administrat 

,  ss.  ,   A.  D.   19     .      Then  personally  appeared 

,  and  made  oath  that  the  above  statement,  by  h      sub- 
scribed, is  true  to  the  best  of  h      knowledge  and  belief. 
Before  me, 

Justice  of  the  Peace. 


PROBATE   FORMS.  631 


License  for  Sale  of  Real  Estate  —  Executors  — 
Administrators.     [Public] 

COMMONWEALTH  OF   MASSACHUSETTS. 

,  8s.         Probate  Court. 

To  ,  administrat       of  the  estate  of  ,  late  of  , 

in  said  County  of  ,  deceased : 

You  are  licensed  to  sell  at  public  auction,  at  aiiy  time  within 
one  year  from  the  date  hereof,  the  following-described  parcel  of 
real  estate  of  said  deceased  for  the  payment  of  h  debts  — 
legacies  —  and  charges  of  administration,  to  wit: 

You  are  required  to  give  public  notice  of  the  time  and  place 
of  such  sale,  by  publishing  a  notification  thereof  once  in  each 
week  for  three  successive  weeks  in  the  ,  a  newspaper  pub- 

lished in  ,  and,   within  one  year  after  such  sale,   return 

your  affidavit  of  having  given  such  notice,  with  a  copy  thereof, 
to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Begister. 


Affidavit  of  Sale   of  Real   Estate  at  Public  Auction. 

[This  affidavit  should  be  returned  immediately  after  the  sale.] 

I  do  testify  and  say  that,  being  authorized  by  the  Probate 
Court,    for    the   County   of  ,    on   the  day  of  , 

A.  D.  19  ,  to  make  sale  of  the  real  estate  hereinafter  described 
of  ,  deceased,  for  the  purposes  in  the  license  set  forth,  I 

gave  public  notice  of  the  time  and  place  of  sale,  by  publishing 
a  notification  thereof  once  in  each  week  for  three  successive 
weeks    in    the  ,    a    newspaper   published    in  ,    com- 

mencing on  the  day  of  ,   A.  D.   19     ,  and  the  fol- 

lowing is  a  true  copy  of  said  notice: 


632  APPENDIX. 


COMMONWEALTH  OF  MASSACHUSETTS. 

,    ss.  ,  A.  D.   19     .     Then  personally   appeared 

,  and  made  oath  to  the  truth  of  the  above  affidavit  by 
subscribed. 

Before  me, 

Justice  of  the  Peace. 


Petition  for  Sale  of  Real  Estate  —  Executors  — 
Administrators.     [Private.] 

[R.  L.  c.  146,  §  9.] 
[A  description  of  the  land  to  be  sold,  sufficient  to  identify  it,  should  be  given.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully   represents  ,   administrat         execut         of 

the  of  ,    late    of  ,   in   said  County   of  , 

deceased. 

That  the  debts  due  from  the  deceased,  as  nearly  as 
they  can  now  be  ascertained,  as  shown  by  the  list 
herewith  filed,  amount  to  $ 

The  legacies  given  in  said  will  to  $ 

And  the  charges  of  administration  to  % 

Amounting  in  all  to  $ 

That  the  value  of  the  personal  estate  in  the  hands  of 
the  petitioner  (exclusive  of  the  widow's  allowance)  is     $ 

That  the  personal  estate  is,  therefore,  insufficient  to 
pay  the  debts  —  legacies  —  of  the  deceased  and 
the  charges  of  administration,  and  it  is  necessary 
for  that  purpose  to  sell  some  part  of  the  real  estate 
to  raise  the  sum  of  $ 

That  an  advantageous  offer  for  the  purchase  of  the  parcel 
hereinafter  described  has  been  made  to  your  petitioner,  to  wit, 
the  sum  of  dollars; 


PROBATE    FOllMS. 


633 


That  the  real  estate  which  the  petitioner  jirojioses  to  sell  con- 
sists of  the  following  parcel,  to  wit: 

And  that  by  a  partial  sale  thereof  the  residue  would  be  greatly 
injured,  and  that  the  interests  of  all  parties  concerned  will  be 
best  promoted  by  an  acceptance  of  said  offer.  Wherefore  your 
petitioner  prays  tliat  he  may  be  licensed  to  sell  at  private  sale, 
in  accordance  with  said  offer,  or  upon  such  terms  as  may  be 
adjudged  best,  the  whole  of  said  parcel  for  the  payment  of  said 
debts  —  legacies  —  and  charges  of  administration. 
Dated  the  day  of  ,  A.  d.  19     . 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citatiou  by  deliveriug  a  copy  to  each  person  interested  in  the  estate  four- 
teen days  at  least  before  return  day,  or  by  pul)lication  once  a  Aveek  for  tliree 
successive  weeks,  the  last  publication  to  be  one  day  at  least  before  return 
day. 


COMMONWEALTH  OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

Estate  of  ,  deceased. 

A  list  of  debts  which  appear  to  be  due  from  the  estate  of 
late  of  ,  in  said  County  ,  deceased. 


Name  of  Creditor. 


Residence,  or  Usual 
Place  of  Business. 


Nature  of  Debt. 


Security. 


Administrat 

,   ss.  ,    A.  D.   19     .     Then  personally  appeared 

,  and  made  oath  that  the  above  statement,  by  h      sub- 
scribed, is  true  to  the  best  of  h       knowledge  and  belief. 

Before  me, 

Justice  of  the  Peace, 


634  APPENDIX. 


License  for  Sale  of  Real  Estate  —  Executor  or 
Administrator.     [Private.] 

COMMONWEALTH  OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  aclmin'istrat        of  the  estate  of  ,  late  of  , 

in  said  County  of  ,  deceased  : 

You  are  licensed  to  sell  and  convey,  at  private  sale,  at  any 
time  witliin  one  year  from  the  date  hereof,  for  the  sum  of 
dollars,  or  for  a  larger  sum,  the  whole  of  the  parcel  hereinafter 
described  of  the  real  estate  of  said  deceased,  for  the  payment  of 
h      debts  and  charges  of  administration,  to  wit:  certain 

parcel     lying  iu  ,  in  said  County  of  ,  and  described 

as  follows,  to  wit : 

But  if,  notwithstanding,  you  deem  it  best  to  sell  the  same 
at  public  auction,  you  are  required  to  give  public  notice  of  the 
time  and  place  of  such  sale  at  auction,  by  publishing  a  notifica- 
tion thereof  once  in  each  week  for  three  successive  weeks  in  the 
,  a  newspaper  published  in  ,  and,  within  one  year 

after  such  sale,  return  your  affidavit  of  having  given  such  no- 
tice, with  a  copy  thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Eegister. 

Administrator's  Petition  for  Sale  of  Eeal  Estate  — 
Distribution. 

[R.  L.  c.  146,  §  18.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents         ,  administrat        of  the  estate 
of  ,  late  of  ,  in  said  County,  deceased,  intestate,  that 


PROBATE    FORMS.  635 

said  ,  at  the  time  of  his  decease,  was  the  owner  of  certain 

real  estate  situate  in  ,   in  the  County  of  ,  bounded 

and  described  as  follows,  viz.: 

the  same  being  all  the  real  estate  of  said  deceased. 

That  the  value  of  the  said  estate,  according  to  the  appraisal 
now  on  file  in  said  Court,  does  not  exceed  the  sum  of  fifteen 
hundred  dollars ;  that  it  is  for  the  advantage  of  all  parties  in- 
terested that  the  same  be  sold  for  the  purpose  of  distribution; 
that  an  advantageous  offer  for  the  purchase  thereof,  to  wit,  the 
sum    of  dollars,    has    been    made    to   your   jjetitioner    by 

,  and  that  the  interest  of  all  parties  concerned  will  be 
best  promoted  by  an  acceptance  of  such  offer. 

Therefore  your  petitioner  pray  that  he  may  be  licensed 
to  sell  the  said  real  estate  of  said  deceased  at  private  sale,  in 
accordance  with  such  offer  ,  or  in  such  manner  as  the  Court 
may  direct,  for  the  purpose  of  distribution. 

Dated  this  day  of  ,  A.  D.  19 

The  undersigned,  being  all  persons  interested,  hereby  assent 
to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  all  persons  interested  who  can  be  found 
within  the  Commonwealth  fourteen  days  at  least  before  return  day  ,  and  if 
any  one  cannot  so  he  found,  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


Administrator's  License  for  Sale  of  Eeal  Estate  — 
Distribution. 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,   administrat        of  the  estate  of  ,    late 

of  ,  in  said  County^  deceased,  intestate. 

You  are  licensed  to  sell  and  convey,  at  private  sale,  for  the 

sum  of  dollars,  or  for  a  larger  sum,  at  any  time  within 


636  APPENDIX. 

cue  year  from    the    date    hereof,    tlie    following-described    real 
estate  of  said  deceased,  for  the  purpose  of  distribution,  namely : 

But  if,  notwithstanding,  you  deem  it  best  to  sell  said  real 
estate  at  public  auction,  j'ou  are  required  to  give  notice  of  the 
time  and  place  of  such  sale,  by  publishing  a  notification  thereof 
once  in  each  week,  for  three  successive  weeks,  in  the  ,  a 

newspaper  published  in  ,  and,  within  one  year  after  such 

sale,  return  your  affidavit  of  having  given  such  notice,  with  a 
copy  thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 


Petition  for  Sale  of  Real  Estate  —  Guardian  — 
Maintenance.    [Public] 

[A  description  of  the  real  estate,  sufficient  to  identify  it,  must  be  given,  together  with  its 
condition,  and  the  reason  why  it  is  necessary  to  sell  it.] 

To  the  Honorable  the  Judge  of  the  Probate   Court  in  and  for 
the  County  of 

Respectfully  represents  guardian  of  ,  of  , 

in  said  County  of  ,  minor,  that  said  ward 

interested  in  certain  real  estate,  to  wit:  — 

that  it  is  necessary  that  said  ward's   interest   therein   be   sol 
for    h       maintenance,  for  the  reason  that  the  income  of    h 
estate  is  insufficient  to  maintain    h       ,  and  that 

Wherefore  said  guardian  prays  that  he  may  be  licensed  to 
sell  and  convey  the  same,  agreeably  to  the  law  in  such  case 
made  and  provided. 

Dated  this  day  of  A.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 


PROBATE    FORMS.  637 

[Notice  to  the  overseers  of  the  poor  is  required  only  iu  cases  where  the  ward  is  insane 
or  a  spendthrift.] 

The  undersigned,  overseei-s  of  the  pooi*  for  the  ,  waive 

notice  and  assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  all  persons  interested  fourteen  davs  at 
least  before  return  day,  or  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  being  one  day  at  least  before  return  day. 


Notice  to  Overseers  of  the  Poor  of  Sale  of 
Real  Estate. 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

,  ,  A.  D,  19 

In  the  matter  of  the  petition  of  ,  guardian  of  , 

an  insane  person,  praying  for  license   to   sell  real  estate 

of    h       ward,  now  pending  in  said  Court. 

We,  the  Overseers  of  the  Poor  of  ,  where  said  ward  is 

an  inhabitant  or  resides,  hereby  acknowledge  due  notice  of  said 
petition  and  make  no  objection  to  the  granting  of  the  prayer 
thereof. 

License  for  Sale  of  Real  Estate  —  Guardians  — 
Maintenance.     [Public] 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  guardian  of  ,  of  ,  in  the  County  of  , 

viinor  . 
You  are  licensed  to  sell,  at  any  time  within  one  j'^ear  from 
the    date    hereof,    the   following-described   real   estate   of   said 
ward    for    h       maintenance : 

And  you  are  required  to  give  public  notice  of  the  time  and 
place  of  sucli  sale,  by  publishing  a  notification  thereof  once  in 
each  week,   for  three  successive  weeks,  in  the  ,  a  news- 


f|3<^  APPENDIX. 

paper  published  in  ,  and,  within  one  year  after  such  sale, 

return  your  affidavit  of  having  given  such  notice,  with  a  copy 
thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,   at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  eight  hun- 

dred and  ninety- 

RegisteT' 

Affidavit  of  Sale  of  Real  Estate  —  Guardian  — 
Maintenance. 

I  do  testify  and  say  that,    being  authorized  by  the  Probate 

Court,  for  the  County  of  ,  on   the  day  of  , 

A.  D.  19       ,  to  make  sale  of  the  real  estate  of  minor  ,  for 

the  purposes  in  the  license  set  forth,  I  gave  public  notice  of  the 

time  and  place  of    sale,  by  publishing  a   notification   thereof, 

once  in  each  week,  for  three  successive  weeks,  in  the  ,  a 

newspaper  published  in  ,  commencing  on  the  day 

of  A.  D.  19       ,  and  the  following  is  a  true  copy  of  said 

notice : 

Guardian. 

,  ss.  ,  A.  D.  19       .     Then   personally   appeared 

and  made  oath  to   the  truth  of  the  above  affidavit  by 

h       subscribed. 

Before  me, 

Justice  of  the  Peace. 


Petition  for  Sale  of  Real  Estate  —  Guardian's  — 
Maintenance  —  Private. 

[A  description  of  the  real  estate,  sufficient  to  identify  it,  must  be  given,  together  with  its 
condition,  and  the  reason  why  it  is  necessary  to  sell  it.] 

To  the  Ilonorahle  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully  represents  ,  guardian  of  ,  of  , 

in  said  County  of  ,  minor,  that  said  ward 

interested  in  certain  real  estate,  to  wit :  — 

that  an  advantageous  offer  has  been  made  to  your  petitioner  for 
said  ward's   share,  to  wit,  the  sum  of  dollars,   that  the 


PKOBATE    FORMS.  g39 

interest  of   all  parties  concerned  will  be  best  promoted  by  an 
acceptance    of    said   offer,    and  that   it    is    necessary   that    said 
ward's  interest   therein  be  sold  for     h        maintenance, 
for  the  reason  that  the  income  of    h       estate  is  insufficient  to 
maintain  h 

Wherefore  said  guardian  prays  that  he  may  be  licensed  to 
sell  and  convey  the  same,  at  private  sale,  in  accordance  with 
said  offer,  or  upon  such  terms  as  may  be  adjudged  best,  agree- 
ably to  the  law  in  such  case  made  and  j^rovided. 

Dated  this  day  of  ,  a.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

[Notice  to  the  overseers  of  the  poor  is  required  only  in  cases  where  the  ward  is 
insane  or  a  spendthrift.  ] 

The   undersigned,    being    overseers   of    the   poor   of  , 

waive  notice  and  assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
least  before  return  day,  or  by  publication  once  a  week  for  three  succesfeive 
weeks,  the  last  publicatiou  to  be  one  day  at  least  before  return  day. 


License  for  Sale  of  Eeal  Estate  —  Guardian  — 
Maintenance.     [Private.] 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,    Guardian   of  ,    of  ,    in   said    Comity 

of  ,  minors  : 

You  are  licensed  to  sell,  and  convey,  at  private  sale  for  the 
sum  of  dollars,  or  for  a  larger  sum,  at  any  time  within 

one  year  from    the    date    hereof,    the    following-described    real 
estate  of  said  ward     for     h       maintenance: 

But  if,   notwithstanding,  you  deem  it  best  to  sell  said  real 
estate  at  public  auction ; 

You  are  required  to  give  public  notice  of  the  time  and  place 


640  APPENDIX. 

of  such  sale,  by  publishing  a  notification  thereof  once  in  each 
week,  for  three  successive  weeks,  in  the  ,  a   newspaper 

published  in  said  ,  and,  within  one  year  after  such  sale, 

return  your  affidavit  of  having  given  such  notice,  with  a  copy 
thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 

Petition  for  Sale  of  Real  Estate  —  Guardian's  — 
Investment.     [Public] 

[A  description  of  the  real  estate,  sufficient  to  identify  it,  must  be  given,  together  with  its 
condition,  and  the  reason  why  it  would  be  for  the  interest  of  the  ward  to  have  it  sold.] 

2'o  the  Honorable  the  Jadf/e  of  the  Frobate  Court  in  and  for 
the  County  of 
Respectfully  represents  ,  guardian  of  ,  of  j 

in  said  County   of  ,  minor,  that  said  ward 

interested  in  certain  real  estate,  to  wit: 

that  it  will  be  for  the  benefit  of  said  ward  that  h  interest 
therein  be  sold,  and  the  proceeds  thereof  put  out  on  interest,  or 
invested  in  some  productive  stock,  for  the  reason  that 

Wherefore  said  guardian  prays  that  he  may  be  licensed  to 
sell  and  convey  the  same,  agreeably  to  the  law  in  such  case 
made  and  provided. 

Dated  this  day  of  ,  a.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

[Notice  to  the  overseers  of  the  poor  is  required  only  in  cases  where  the  ward  is 
insane  or  a  spendthrift.] 

The  undersigned,    being   overseers  of   the   poor   of  , 

waive  notice  and  assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
lea.st  before  return  day,  or  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


PKOBATE    FOKMS.  641 

License  to  Sell  Real  Estate — Guardians  —  Invest- 
ment.    [Public] 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  guardian  of  ,  of  ,  in  the  County  of  , 

minor 
You  are  licensed  to  sell,  at  anj'  time  within  one  year  from  the 
date  hereof,  the  following  described  real  estate  of  said  ward 
and  put  out  the  proceeds  on  interest,  or  invest  the  same  in  some 
productive  stock, 

And  you  are  required  to  give  public  notice  of  the  time  and 
place  of  such  sale,  by  publishing  a  notification  thereof  once  in 
each  week,  for  three   successive   weeks,  in  the  ,  a  news- 

paper published  in  ,  and,  within  one  year  after  such  sale, 

return  your  affidavit  of  having  given  such  notice,  with  a  copy 
thereof,  to  the  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand    nine    hun- 

dred and 

jRegister. 

Affidavit  of  Sale  of  Real  Estate  by  Guardian  for 
Investment. 

[This  affidavit  should  be  returned  immediately  after  the  sale.] 

I  do  testify  and  say  that,  being  authorized  by  the  Probate 

Court,  for  the  County  of  ,  on  the  day  of  , 

A.  d.  19       ,  to  make  sale  of  the  real  estate  of  ,  minor     , 

for  the  purposes  in  the  license  set  forth,  I  gave  public  notice  of 

the  time  and  place  of  sale,  bj^  publishing  a  notification  thereof, 

once  in  each  week,  for  three  successive  weeks,  in  the  ,  a 

newspaper  published  in  ,   commencing  on   the  dny 

of  ,  A.  D.  19       ,  and  the  following  is  a  true  copy  of  said 

notice : 

Guardia7i. 

41 


642  APPENDIX. 

ss,  .  ,  A.  D.  189     .     Then  personally  appeared 

and  made   oath    to  the   truth  of  the  above  affidavit  by 
h       subscribed. 

Before  me, 

Justice  of  the  Peace. 

Petition  for  Sale  of  Real  Estate  — Guardians  — 
Investment.     [Private.] 

[A  description  of  the  real  estate,  suflScient  to  identify  it,  must  be  given,  together  with  its 
condition,  and  the  reason  why  it  would  be  for  the  interest  of  the  ward  to  have  it  sold.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  guardian  of  ,  of  , 

in  said  County  of  ,  minor,  that  said  ward         inter- 

ested in  certain  real  estate,  to  wit: 

that  an  advantageous  offer  has  been  made  to  your  petitioner 
for  said  ward     share,  to  wit:  the  sum  of  dollars,  that  the 

interest  of  all  parties  concerned  will  be  best  promoted  by  an 
acceptance  of  said  offer,  and  that  it  will  be  for  the  benefit  of 
said  ward  that  h  interest  therein  be  sold,  and  the  proceeds 
thereof  put  out  on  interest,  or  invested  in  some  productive 
stock,  for  the  reason  that 

Wherefore  said  guardian  pray  that  he  may  be  licensed 
to  sell  and  convey  the  same  in  accordance  with  such  offer  at 
private  sale,  or  upon  such  terms  as  may  be  adjudged  best,  agree- 
ably to  the  law  in  such  case  made  and  provided. 

Dated  this  day  of  ,  A.  D.  19     . 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

[Notice  to  the  overseers  of  the  poor  is  required  only  in  cases  where  the  ward  is  insane  or  a 

spendthrift.] 

The  undersigned,  being  overseers  of  the  poor  of  ,  waive 

notice  and  assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
least  before  return  day,  or  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


PROBATE   FORMS.  643 


License  to  Sell  Real  Estate  —  Guardian  —  Invest- 
ment.    [Private.] 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  guardian  of  ,  of  ,  in  the  Comity  of  , 

minor   : 
You  are  licensed  to  sell  and  convey  at  private  sale,  for  the 
sum  of  dollars,  or  for  a  larger  sum,  at  any  time  within 

one  year  from  the  date  hereof,  the  following-described  real  estate 
of  said  ward,  and  put  out  the  proceeds  on  interest,  or  invest  the 
same  in  some  productive  stock; 

But  if,  notwithstanding,  you  deem  it  best  to  sell  said  real 
estate  at  public  auction,- — 

You  are  required  to  give  public  notice  of  the  time  and  place 
of  such  sale,  by  publishing  a  notification  thereof  once  in  each 
week  for  three  successive  weeks  in  the  ,  a  newspaper  pub- 

lished in  ,  and  within  one  year  after  such  sale  return  your 

affidavit  of  having  given  such  notice,  with  a  copy  thereof,  to  the 
Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 

Petition  foe  Sale  of  Trust  Estate  —  Real  or  Personal 
—  Trustee. 

[R.  L.  c.  147,  §§  15,  16.] 

[A  description  of  the  property  to  be  sold,  sufficient  to  identify  it,  should  be  given.    Minors 
and  insane  persons  should  be  so  designated.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents         ,  trustee    under  the  will  of  , 

late  of  ,  in  the  County  of  ,  deceased,  testate,  for  the 


G-14  APPENDIX. 

benefit  of  the  persons  below  named,  that  he  holds  as  such 
trustee  certain  estate,  to  wit: 

that  the  sale,  conveyance,  and  transfer  of  said  estate  is  necessary 
and  expedient,  for  the  reason  that  ,  that  an  offer  of 

dollars  has  been  made  for  it,  which  is  its  full  value;  that  it  is 
desirable  that  the  proceeds  thereof  be  invested  and  applied  iu 
the  following  manner: 

After  diligent  search,  the  following  are  found  to  be  the  only 
persons  known  to  the  petitioner  who  are  or  may  become  inter- 
ested therein : 

Name.  Residence.  Nature  of  Inteeest. 


that  the  only  persons  now  ascertained  whose  issue,  not  now  m 
being,  may  become  interested  are : 

Name.  Residence. 


Wherefore  your  petitioner  pray  that  he  may  be  author- 
ized to  make  said  sale,  conveyance,  and  transfer  at  private  sale 
or  at  public  auction,  and  to  make  the  said  investment  and  appli- 
cation of  the  proceeds  thereof. 

Dated  this  day  of  ,  A.  D.  19     . 

The  undersigned,  being  all  the  persons  interested,  assent  to 
the  above  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  in  the  estate  four- 
teen days  at  least  before  return  day,  or  by  publication  once  a  week  for  three 
successive  weeks,  the  last  publication  to  be  one  day  at  least  before  retura 
day. 


PROBATE   FORMS.  645 


Sale  of  Trust    Estate  —  Appointment  of  Next   Friend 
Guardian   for  the  Case. 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

At  a  Probate  Court  holden  at  ,  in  said  County,  on  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and 

In  the  matter  of  the  petition  of  ,  trustee  under 

the  will  ,  of  ,  late  of  ,  in  the  County  of  , 

for  the  benefit  of  ,  and  others. 

It  appearing  to  said  Court  tliat  there  is  need  therefor,  it  doth 
appoint  ,  of  ,  m  tlie  County  of  ,  to  appear  and 

act  therein  as  the  next  friend  of  all  persons  not  ascertained,  or 
not  in  being,  who  are  or  may  become  interested  in  said  estate; 
and  it  also  appearing  that  ,  minor  ,  and  interested  in  said 

case,  and  ha         no  legal   guardian,   it  doth  appoint  ,  of 

,  in  said  County  of  ,  to  be   guardian  for  the  case, 

to  appear  and  act  for  said  minor  in  the  above-mentioned 
matter. 

Judge  of  Probate  Court. 


I  hereby  accept  the  above  appointment,  and 


Petition  for  Sale  of  Personal  Estate, 

[R.  L.  c.  145,  §  35.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 

Kespectfully  represents  ,   of  ,    in  the  County  of 

,  that  he  is  interested  as  ,  in  the  estate  of  , 

late  of  ,  in  said  County  of  ,   deceased  ;  and   that  it 

will  be  most  for  the  interest  of  all  concerned  in  said  estate  that 


646  APPENDIX. 

certain  of  the  personal  estate  of  said  deceased,  hereinafter 
named,  to  wit: 

should  be  sold  at  private  sale  or  public  auction. 

Wherefore    h        pray    that  the  of   said   estate     may- 

be ordered  by  said  Court  to  sell  said  personal  estate  at  private 
sale,  for  a  sum  not  less  than  dollars,  or  at  public  auction. 

Dated  this  day  of  ,  A.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
least  before  return  day,  or  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


Petition  for  Sale  of  Personal  Estate  by  Foreign . 

[R.  L.  c.  148,  §  3.] 

To  the  Honorable  the  Judge  of  the  Probate   Court  in  and  for 
the  County  of 
Respectfully  represents  ,  of  ,  in  the  State  of  , 

that    he    is  the  of  the  estate  of  ,  late  of  , 

in  the  County  of  ,  and  State  of  ,  deceased,  duly  ap- 

pointed by  the  Court  in  and  for  said  County  of  , 

and  has  been  duly  qualified  and  is  acting  as  such  .     Tliat 

as  such  he  is  entitled  to  certain  personal  property  situated 

in  said  County  of  ,  to  wit : 

■which  said  corporation  ha  established  or  usual  place  of 
business  in  said  County  of  .     That  there  is  no  executor, 

administrator,  guardian,  or  trustee  appointed  in  this  Common- 
wealth who  is  authorized  to  receive  and  dispose  of  such  shares 
or  estate,  and  that  your  petitioner    as  such  will  be  liable 

upon  and  after  the  receipt  or  sale  of  said  shares  or  estate  to 
account  for  the  same  or  for  the  proceeds  thereof  in  said  State 
in    which     he  was   appointed.     That   said  died   on   the 


PROBATE   FORMS.  647 

day  of  ,  A.  D.  19     ,  and  that  six  months  from  tlie 

death  of  said  deceased  have  expired. 

And  your  petitioner  prays  that    he    as  such  be  licensed 

to  receive  or  to  sell  by  public  or  private  sale,  on  such  terms  and  to 
such  person  or  persons  as  he  shall  think  fit,  or  otherwise  to 
dispose  of,  and  to  transfer  and  convey  said  shares  and  estate. 

Dated  this  day  of  A.  d.  19     . 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  delivering  a  copy 
of  the  citation  to  the  treasurer  of  the  Commonwealth  fourteen  days  at  least 
before  the  return  day. 


Petition  for  Eelease  of  Right  of  Dower  of  an 
Insane  Woman. 

[R.  L.  c.  153,  §  19.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 

Respectfully    represents  ,  of  ,  in    said    County, 

that  he  is  seized  of  a  certain  parcel  of  real  estate  situate 
in  ,  in  said  County,  and  described  as  follows : 

that  he  is  desirous  of  conveying  said  real  estate  in  fee  but 

that  his  wife,  is  incompetent,   by  reason  of  insanity,  to 

release  her  right  of  dower  in  the  same;  that  the  interests 

of  your  petitioner  require  that  such  conveyance  should  be  made, 
and  that  the  right  of  his  said  wife  in  said  real  estate  should  be 
released;   that 

He  therefore  prays  that  ,  guardian  of  said  may 

be  authorized  and  empowered  to  join  him  in  a  conveyance  of 
said  real  estate  for  the  purpose  of  releasing  her  right  of  dower 
therein. 

Dated  this  day  of  ,  A.  d.  19 

Citation  by  delivering  a  copy  to  each  person  interested  days  at  least 

before  return  day,  or  by  publication  once  a  week  for  three  successive  weeks, 
the  last  publication  to  be  one  day  at  least  before  return  day. 


648  APPENDIX. 


Petition  for  Mortgage  of   Real   Estate — Executor  — 
Administrator. 

[All  the  heirs  of  the  intestate  or  their  guardians  must  assent  to  a  mortgage  by 
an  administrator.] 

[A  description  of  the  real  estate,  sufficient  to  identify  it,  must  be  given,  and  a  sworn  list  of 
the  debts  of  the  deceased  should  accompany  the  petition.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 

Respectfully  represents  ,  administrat         execut         of 

the               of             ,  late  of  ,   in  said  County  of               j 

deceased,  that  said   deceased  died  seized  of  the  following  des- 
cribed real  estate,  viz. : 

that  he  desires  to  mortgage  the  same  to  secure  the  sum  of 
dollars,  the  amount  necessary  to  be  raised  thereon  for  the  fol- 
lowing purposes,  viz. : 

^lierefore    he    prays  that    he    may  be  authorized  to  mort- 
gage said  real  estate  for  said  purposes. 
Dated  this  day  of  ,  a.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
least  before  return  day,  or  by  publication  once  a  weeii  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


Petition  to  Mortgage  Real  Estate  —  Guardian. 

[A  description  of  the  real  estate,  sufficient  to  identify  it,  must  be  given,  together  with  its 
condition,  and  the  reason  why  it  would  be  for  the  interest  of  the  ward  to  have  it  mortgaged, 
and  if  the  object  of  the  mortgage  is  the  payment  of  debts,  a  sworn  list  of  debts  should 
accompany  the  petition.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfull}'^  represents  ,  guardian    of  ,  of  , 

in  said  County,   minor    ,  that  said  ward  interested   in 

certain  real  estate,  to  wit: 


PROBATE   FORMS.  619 

that  said  real  estate  is  valued  at  dollars;  and  said  wards 

interest  therein   is  part  thereof;    that  it   is  necessary  to 

raise  the  sum  of  dollars  for 

and  that  the  interests  of  said  wards  require  that  said  guardian 
shall  have  power  to  mortgage  said  real  estate  to  raise  said 
sum  for  the  purpose    aforesaid. 

Wherefore  said  guardian  pray  that  he  may  he  authorized 
to  mortgage  the  same  agreeably  to  the  law  in  such  case  made 
and  provided. 

Dated  this  day  of  ,  A.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

[Notice  to  the  overseers  of  the  poor  is  required  only  in  cases  where  the  ward  is  insane 
or  a  spendthrift.] 

The  undersigned,  being  overseers  of  the  poor  of  ,  waive 

notice  and  assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
least  before  return  day,  or  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


Petition  to  Mortgage  Eeal  Estate  —  Trustee. 

[R.  L,  0.  147,  §  18.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 
the  County  of 
Respectfully  represents  ,  trustee  under  the  will  of 

late  of  ,  in  said  County,  deceased, 

that  it  will  be  for  the  benefit  of  the  trust  estate  held  by  h       as 
such  trustee    that  certain  of  said  trust  estate,  to  wit : 

be  mortgaged  to  raise  the  sum  of  dollars  for  the  purpose  of 


650 


APPENDIX. 


and   that   the   following-named  pei-sons   only  are   interested   in 
said  estate,  namely : 

Wherefore  said  trustee  Jjray  that  he  may  be  authorized 
to  mortgage  said  real  estate  to  the  amount  aforesaid  for  the 
purposes  aforesaid,  agreeably  to  tlie  law  in  such  case  made  and 
provided. 

Dated  this  day  of  A.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  publicatiou  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day ;  and  by  sending  a  copy 
properly  mailed,  postage  prepaid,  to  each  of  the  persons  interested  in  the 
trust  estate,  or  their  legal  representatives  known  to  the  petitioner,  seven 
days  at  least  before  return  day. 


Petition  for  Separate  Support. 

[The  words  in  italics  in  the  prayer  of  the  petition  should  be  stricken  out  unless  that  pait  of 
the  prayer  is  based  upon  specifications.] 

To  the  Honorable  the  Judrje  of  the  Probate   Court  in  and  for 
the  County  of 

Respectfully   represents  ,   of  ,   in  the   County  of 

,  that  she  is  the  lawful  wife  of  ,  of  said  ,  that 

her  said  husband  fails,  without  just  cause,  to  furnish  suitable 
support  for  her,  and  has  deserted  her;  and  that  she  is  living 
apart  from  her  said  husband  for  justifiable  cause,  and  she  herein 
sets  forth  the  following  specifications: 

that  there  ha       been  born  to  them  the  following  children: 

Wherefore  your  petitioner  prays  that  said  Court  will,  — 
hy  its  order,  prohibit  her  said  husband  from  imjiosing  any 
restraint  on  her  personal  liberty,  and  —  make  such  order 


PROBATE    FORMS.  651 

as   it   deems   expedient   concerning   her  support,  and  tlie  care, 
custody,  and  maintenance  of  said  minor  children. 
Dated  this  day  of  ,  A.  d.  19 

Citation  by  delivering  the  respondent  a  copy  fourteen  days  at  least  before 
return  day,  if  lie  may  be  found  within  the  Coiunionwealtli ;  or  if  he  shall  not 
be  s'o  found,  by  delivering  to  him  such  copy  wherever  found,  or  by  leaving  it 
at  his  usual  place  of  abode,  or  by  mailing  the  same  to  him  at  his  last  known 
post-office  address,  fourteen  days  at  least  before  return  day  ;  and  also,  unless 
it  shall  lie  made  to  appear  to  the  Court  by  affidavit  that  he  has  had  actual 
notice  of  the  proceedings,  l)y  publication  once  a  week,  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


Separate  Support — Order  of  Notice  a-^d  Attachment. 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

On  the  petition  of  ,  of  ,  in  said  Count}',  the  wife 

of  ,  of  said  ,  representing  that  her  said  husband 

fails  without  just  cause  to  furnish  suitable  support  for  her,  and 
praying  that  said  Court  will,  by  its  order,  prohibit  her  said 
husband  from  imposing  any  restraint  on  her  personal  liberty, 
and  make  such  oi'der  as   it   deems   expedient   concerning 

her  support,  and  the  care,  custody  and  maintenance  of  the 
minor  children  of  herself  and  her  said  husband,  and  also  pray- 
ing that  an  attachment  of  the  goods  and  estate  of  her  said 
husband  may  be  made  to  secure  the  decree  which  said  petitioner 
may  obtain  for  such  support,  and  especially  his  goods  and  estate 
in   the   hands   and   possession   of  ,   trustee     of    her   said 

husband,  it  is  ordered  that  the  petitioner  give  notice  to  the 
said  to  appear  at  a  Probate  Court  to  be  held  at  ,  in 

said  County  of  ,  on  the  day  of  ,  A.  D.  19       , 

at  ten  o'clock  in  the  forenoon,  by  delivering  to  him  a  copy  of 
this  order  fourteen  days  at  least  before  said  Court,  if  he  may  be 
found  within  this  Commonwealth,  that  he  may  then  and  there 
show  cause,   if  any  he  has,    why  the  prayer  of   said  petition 


652  APPENDIX. 

should  not  be  granted;  or,  if  he  shall  not  be  so  found,  by 
delivering  to  him  such  copy  wherever  found,  or  by  leaving 
such  copy  at  his  usual  place  of  abode,  or  by  mailing  the  same 
to  him  at  his  last  known  post-office  address  fourteen  days  at 
least  before  said  Court;  and  also,  unless  it  shall  be  made  to 
appear  to  the  Court  by  affidavit  that  he  has  had  actual  notice  of 
the  proceedings,  by  publishing  the  same  once  in  each  week  for 
three   successive   weeks    in  ,    a   newspaper    published   in 

,  the  last  publication  to  be  one  day  at  least  before  said 
Court. 

And  in  order  to  secure  to  the  petitioner,  and  to  such  children 
as  may  be  committed  to  her  care  and  custody,  a  suitable  support 
and  maintenance,  the  sheriffs  of  the  several  counties,  or  either 
of  their  deputies,  are  hereby  directed  to  attach  the  real  and 
personal  estate  of  the  said  to  the  amount  of  dollars, 

and  especially  his  goods,  effects,  and  credits  in  the  hands  and 
possession  of  the  said  trustee  ;  and  to  summon  the  said  trustee 
if  h  be  found  in  his  precinct,  by  serving  h  with  an 
attested  copy  of  this  order  fourteen  days  at  least  before  said 
return  day,  to  appear  before  said  Court,  to  be  held  as  aforesaid, 
to  show  cause,  if  any  h  ha  why  execution  to  be  issued 
upon  such  decree  as  the  said  Court  may  make  in  favor  of  said 
petitioner  (if  any)  should  not  issue  against  the  goods,  effects, 
and  credits  of  the  said  in  the  hands  and  possession  of  the 

said  supposed  trustee    . 

Witness,  ,  Esquire,  Judge  of  said  Court,  this 

day  of  ,    in  the  year  one  thousand    nine   hundred  and 

Register. 
I  have  served  the  within  citation  by 

,  ss.  ,  A.  D.  19       .     Personally  appeared 

and  made  oath  to  the   truth  of    the  above  return  by    h 
subscribed. 

Justice  of  the  Peace. 


PROBATE   FOKMS.  653 


Separate  Support  —  Execution. 

COMMONWEALTH    OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  the  Sheriffs  of  our  several  Counties,  or  their  Deputies,  or 
any  Constable  of  the  City  of  in  said  County  : 

Greeting  : 

Whereas,  on  the  petition  of  ,  of  ,  in  said  County 

of  ,  wife  of  ,  of  said  ,  said  Court,  by  its  de- 

cree made  on  the  day  of  ,  A.  d.  19     ,  ordered  said 

to  pay  said  ,  for  the   support   of   herself   and  the 

maintenance  of  minor  children,  the  sum  of  dollars,  forth- 

with,   and   a  further  sum   of  dollars   on    each   and   every 

thereafter;  and  whereas,  iinder  said  decree,  there  now 
remains  due  and  unpaid  the  sum  of  dollars,  whereof  ex- 

ecution is  requested  to  be  done;  and  whereas,  on  the  day 

of  ,  A.  D.  19     ,  it  was  ordered  by  said  Court  that  execu- 

tion issue  for  the  sum  of  dollars. 

You  are  hereby  commanded,  therefore,  that  of  the  goods, 
chattels,  or  lands  of  the  said  ,  within  your  precinct,  you 

cause  to  be  paid  and  satisfied  unto  the  said  ,  at  the  value 

thereof  in  money,  the  sum  of  dollars,  with  interest  thereon 

from  said  ,  and  thereof  also  to  satisfy  yourself  for  your 

own  fees ;  and  for  want  of  goods,  chattels,  or  lands  of  the  said 

,  to  be  by  him  shown  unto  you,  or  found  within  your 
precinct,  to  the  acceptance  of  the  said  petitioner  to  satisfy  the 
sums  aforesaid,  with  interest  as  aforesaid,  you  are  commanded 
to  take  the  body  of  said  ,  and  him  commit  unto  our  jail  in 

,  in  our  County  of  ,  or  any  jail   in  your  precinct, 

aforesaid,  and  him  detain  in  your  custody  within  our  said  jail 
until  he  pay  the  full  sum  of  dollars,  with   interest  and 

your  fees  as  aforesaid,  or  that  he  be  discharged  by  the  said  peti- 
tioner, or  otherwise  by  order  of  law.     Hereof  fail  not,  and  make 


654  APPENDIX. 

return  of  this  writ,  with  your  doings  therein,  into  the  Registry 
of  Probate  at  ,  in  said  County  of  ,  in  sixty  days 

after  the  date  hereof. 

Witness,  ,  at  ,  the  day  of  ,  in  the  year 

of  our  Lord  one  thousand  nine  hundred  and 

Register. 

Separate  Support  —  Capias. 

COMMONWEALTH  OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  the  Sheriff  of  our  Coxinty  of  ,  or  either  of  his  Deputies, 

or  any  Constable  of  the  City  of  in  said  County  : 

Greetixg  : 

Whereas,  ,  of  ,  in  said  County  of  ,  was  duly 

ordered  to  appear  before  said  Probate  Court,  on  the  day  of 

,  A.  D.  19  ,  at  ten  o'clock  in  the  forenoon,  then  and 
there  to  show  cause,  if  any  he  had,  \c\\y  he  should  not  be  held 
to  be  in  contempt  of  said  Court  in  not  obeying  its  decree  dated 

,  A.  D.  19  ,  wherein  he  was  ordered  to  pay  certain  sums 
fur  the  support  and  maintenance  of  his  wife  and  minor  child  , 
from  which  said  day  of         ,  the  consideration  of  said  case 

was   continued  from   time  to  time  to  this  day  of  , 

A.  D.  19  ,  and  hath  neglected  to  appear,  in  contempt  of  said 
Court.  You  are  hereby  commanded  to  apprehend  the  body  of 
the  said  (if  he  may  be  found  in  your  precinct),  and  bring 

him   before   said  Court,    at  ,  on   the  day   of  , 

A.  D.  19  ,  at  ten  o'clock  in  the  forenoon,  that  he  may  submit 
himself  to  an  examination  according  to  law;  and  also  to  answer 
for  his  contempt  in  not  obeying  the  aforesaid  decree  of  said 
Court,  and  in  not  appearing  according  to  a  summons  served  on 
him  agreeably  to  law.  Hereof  fail  not,  and  make  due  return  of 
this  precept,  with  your  doings  herein. 

Witness,  ,  Esquire,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Register. 


probate  forms.  655 

Separate  Support  —  Mittimus  for  Contempt. 

COMMONWEALTH  OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  the  Sheriff  oj  our  County  of  ,  his  Deputies,  and  the 

Keeper  of  the  Jail  at  ,  i?i  our  Count//  of 

Greeting  : 

Whereas,  by  the  consideration  of  our  Probate  Court  holden  at 
,  within  and   for   the   County  of  ,  on  the         day 

of  ,  in  the  year  of  our  Lord  one  thousand  nine  hundred 

and  ,  now    in   custody  of  ,    one   of   said   deputies, 

was  ordered  to  pay  certain  sums  for  the  support  of  his  wife 
,  and  their  minor  children  intrusted  to  her  care,  and  for 
the  costs  and  expenses  of  his  said  wife  in  maintaining  her  suit 
therefor;  and  it  appearing  that  the  full  and  just  sum  of 
dollars  has  become  due  and  j)ayable  under  and  by  virtue  of  said 
order,  and  that  the  said  neglects  and  refuses  to  pay  the 

same;  and  it  further  appearing  that  the  said  is  guilty  of 

contempt  of  Court  in  his  said  neglect  and  refusal. 

You  and  each  of  you,  the  said  sheriff  and  deputies,  are  there- 
fore hereby  commanded,  in  the  name  of  the  Commonwealth  of 
]\[assachusetts,  forthwith  to  take  the  said  ,  and  him  carry 

to  the  said  jail  and  him  deliver  to  the  keeper  thereof,  together 
with  an  attested  copy  hereof,  and  thereafterward  forthwith  to 
return  this  warrant,  with  your  doings  thereon,  into  said  Court. 

And  you,  the  said  keeper,  are  alike  commanded  to  receive 
said  into  your  custody  in  said  jail,  and  him  there  safely 

keep  until  he  shall  purge  himself  of  his  said  contempt  by  pay- 
ment of  the  sum  of  dollars,  and  the  costs  of  serving  this 
precept,  or  until  the  further  order  of  this  Court,  or  until  he  be 
otherwise  discharged  by  due  course  of  law. 

Witness,  ,  Esquire,  at  ,  this  day  of  , 

in   the   year   of    our    Lord   one    thousand    nine   hundred   and 

Register. 


656  APPENDIX. 

,    SS.  ,    A.   D.    19       . 

Pursuant   to   the   warrant,    I   have    taken    and  conveyed   the 
above-named  to  the   jail   in  ,    in   said  County,   and 

delivered  him  and  a  copy  of  this  warrant  to  the  keeper  thereof. 

Dejjuty  Sheriff. 


Petition  ox  Desertion  and  Living  Apart. 

[R.  L.  c.  153,  §§  33,  36.] 

To  the  Honorable  the  Judge  of  the  Prolate  Court  in  and  for 
the  County  of 
Respectfully  represents  ,   of  j    in  the   County  of 

,  that   she  is  the   lawful   wife  of  ,  of  said  , 

that  lur  said  husband  fails,  without  just  cause,  to  furnish  suit- 
able support  for  her,  and  has  deserted  her,  and  that  your  peti- 
tioner, for  justifiable  cause,  is  actually  living  apart  from  her 
said  husband,  and  that  there  have  been  born  to  them  the  fol- 
lowing children: 

She  further  represents  that  she  has  need  to  be  relieved  of  the 
disabilities  of  coverture  so  far  as  to  be  enabled  to  dispose  of  her 
personal  and  real  estate  without  her  husband's  written  consent, 
in  the  same  manner  and  with  the  same  effect  as  if  she  were 
sole. 

Wherefore  she  prays  that  said  Court,  after  due  notice  to  her 
said  husband  and  full  consideration  of  the  premises,  will  enter 
a  decree  establishing  the  fact  of  such  desertion,  and  that  such 
living  apart  from  her  husband  is  on  her  part  for  justifiable 
cause. 

Dated  this  day  of  ,  A.  d.  19     . 

Citation  by  delivering  the  respondent  a  copy  fourteen  days  at  least  before 
return  day,  if  he  may  be  found  within  the  Commonwealth ;  or,  if  he  shall  not 
be  so  found,  by  either  leaving  such  copy  at  his  usual  place  of  abode,  or  by 
mailing  such  copy  to  his  last  known  post-office  address ;  and  also,  unless  it 
shall  be  made  to  appear  to  the  Court  by  affidavit,  that  he  has  had  actual  no- 
tice of  the  proceedings,  by  publication  once  a  week  for  three  successive  weeks, 
the  last  publication  to  be  one  day  at  least  before  return  day. 


PROBATE   FORMS.  >  €57 


Petition  for  Custody  of  Children. 

[R.  L.  c.  153,  §  37.] 

To  the  Honorable  the  Judye  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  ,    of  ,  iu   the  County  of 

,   that     he     is  the  lawful  wife  —  husband  —  of  , 

of  said  ,  and  that  your  petitioner  and  said  are  actu- 

ally living  apart  from  each  other;  that  children  have  been  born 
to  them  who  are  now  living,  and  whose  names  and  dates  of  birth 
are  as  follows : 

Your  petitioner  further  represents  that  the  happiness  and 
welfare  of  said  children,  who  are  minors,  require  that  he  should 
have  custody  and  possession  of  them. 

Wherefore  he  prays  that  said  Court  will  make  such  order  as 
it  deems  expedient  concerning  the  care,  custody,  education,  and 
maintenance  of  said  minor  children,  and  order  that  they  remain 
with  your  petitioner. 

Dated  this  day  of  ,  a.  d.  19     . 

Citation  by  deliveriug  a  copy  to  the  respondent  days  before  return 

day. 


Petition  for  Adoption  and  Change  of  Name. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
Coiinty  of 

Respectfully   represents  ,    of  ,    in    said   County, 

and  ,  his  wife,  that  they  are  of  the  age  of  twenty- 

one  years  or  upwards,  and  are  desirous  of   adopting  ,  of 

,   a  child  of  ,  of  ,  in   the  County  of  , 

and  ,  his  wife,  which  said  child  was  born  in  , 

on  the  day  of  ,  A.  d.  19     ;  that 

42 


658  APPENDIX. 

Wherefore     he     pray     for  leave  to  adopt  said  child,  and  that 
h      name  may  be  changed  to  that  of 

Dated  this  day  of  ,  A.  d.  19     . 

The  undersigned,  being  the  of  said  child,  hereby  con- 

sent    to  the  adoption,  as  above  prayed  for. 

I,  the  child  above-named,  being  above  the  age  of  fourteen 
years,  hereby  consent  to  the  adoption  as  above  prayed  for. 

Citation  by  delivering  to  the  parties  interested  a  copy  seven  days  at 
least  before  return  day,  or,  if  they  be  not  found  within  the  Commonwealth, 
by  publication  once  a  week  for  three  successive  weeks,  the  last  publication 
to  be  seven  days  at  least  before  return  day. 


Petition  for  Change  of  Name. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 

County  of 

Respectfully  represents  ,  of  ,  in  said  County,  that 

he  was  born  in  ,  in  the  County  of  ,  and  State  of 

,   on  the  day  of  ,   A.  D.    19     ,    that     he  has 

heretofore  resided  in  the  following  places  only : 

that    h     occupation  is  that  of  a  ,  and  that    he  wishes  to 

change  h     name  to  that  of  ,  for  the  reason  that 

Wherefore  your  petitioner  prays  that  h  name  may  be 
changed,  and  that      he  may  take  the  name  of  ,  as  afore- 

said. 

Dated  this  day  of  ,  a.  d.  19     . 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


PROBATE   FORMS.  659 

Change  of  Name  ^  Copy  of  Decree. 
COMMONWEALTH  OF  MASSACHUSETTS. 


At  a  Probate  Court  holden  at  in  and  for  said  County  of 

,  on  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  nine  hundred  and        : 

Oil  the  petition  of  ,  of  ,  in  said  County,  praying 

that     h     name  may  be  changed  to  that  of  ,  public  notice 

having  been  given,  according  to  the  order  of  Court,  that  all 
persons  might  appear  and  show  cause,  if  any  the}'  had,  why  the 
same  should  not  be  granted,  and  it  appearing  that  the  reason 
given  therefor  ■  sufficient,  and  consistent  with  the  public  in- 
terest, and  being  satisfactory  to  the  Court,  and  no  objection 
being  made. 

It  is  decreed  that     h     name  be  changed,  as  prayed  for,  to 
that  of  ,  which  name     h     shall  hereafter  bear,  and  which 

shall  be  h  legal  name,  and  that  he  give  public  notice  of  said 
change  by  publishing  this  decree  once- in  each  week  for  three 
successive  weeks  in  the  ,  a  newspaper  published  in  said 

,  and  make  return  to  this  Court  under  oath  that  such 
notice  has  been  given. 

Judge  of  Probate  Court, 

I  have  caused  the  above  to  be  published  as  ordered. 

,    ss.  A.   D.    19     .     Personally  appeared 

and  made  oath  that  the  above  return  by  h      subscribed  is  true. 
Before  me, 

Justice  of  the  Peace. 


QQQ  APPENDIX. 

Change  of  Name  —  Certificate. 
COMMONWEALTH   OF   MASSACHUSETTS. 
,  ss.  Probate  Court. 

By  virtue  of  the  power  and  authority  vested  in  me,  I,  , 

Esquire,  Judge  of  the  Probate  Court  in  and  for  said  County, 
hereby  certify  that  at  a  Probate  Court  holden  at  ,  in  and 

for  said  County,  on  the  day  of  ,  a.  D.  19     ,  on  h 

application,  and  after  due  public  notice  thereof,  and  for  suffi- 
cient reason  consistent  with  the  public  interest,  and  satisfactory 
to  said  Court,  the  name  of  ,  of  ,  was  changed  to  that 

of  ,  that   public   notice  of   such  change   has   been   given, 

according  to  the  order  of  Court,  and  that  he  shall  hereafter 
bear  said  name  of  ,  which  shall  be  h     legal  name. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused 

the  seal  of  said  Court  to  be  affixed,  at  ,  this  day  of 

,  in  the  year  of  our  Lord  one  thousand  nine  hundred 

and 

Judge  of  Probate  Court. 
Countersigned, 

JKegister. 


Petition  for  Assignment  of  Homestead. 

[The  names  of  the  guardians  of  minors  interested  should  be  stated.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  ,  of  ,   in  said  County  of 

,    that  ,  late  of  ,  in   said  County  of  , 

deceased,  testate,  whose  estate  is  settled  in  this  Court,  died 
seized  of  certain  lands  in  this  Commonwealth;  that  she  is  his 
widow,  and  entitled  to  an  estate  of  homestead  in  said  lands; 
that  her  right  is  not  disputed  by  the  heirs;  and  that  the 


PROBATE    FOKMS.  661 

names  aud  residences  of  all  parties  now  interested  therein  are 
as  follows: 

Wherefore  she  prays  that  her  estate  of  homestead  in  said 
lands  may  be  assigned  to  her  by  said  Court,  as  provided  by 
law. 

Dated  this  day  of  ,  a.  d.  19     . 

The  undersigned,  being  the  only  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
least  before  return  day,  or  by  publication  once  a  week  for  three  successive 
■weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


Assignment  of  Homestead  —  Warrant  —  Report. 

COMiMONWEALTH    OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You  are  appointed  commissioners  to  set  off  an  estate  of  home- 
stead to  ,  widow  of  ,  late  of  ,  in  said  County, 
deceased. 

First,  being  sworn,  you  will  give  notice  to  all  persons  inter- 
ested of  the  time  and  place  appointed  by  you  for  setting  off  said 
homestead,  and  you  will  set  off  to  said  widow,  by  metes  and 
bounds,  an  estate  of  homestead  to  the  extent  in  value  of  eight 
hundred  dollars  in  the  lot  of  land  and  buildings  thereon  owned 
or  rightly  possessed  and  occupied  as  a  residence  by  said 
deceased. 

You  will  cause  all  persons  interested,  who  are  satisfied  with 
your  doings,  to  certify  the  same  on  your  report,  and  will  return 
this  warrant,  with  your  doings  thereon,  as  soon  as  may  be  to 
said  Probate  Court. 

Witness,  ,   Judge  of   said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred aud 

Register. 


662  APPENDIX. 

,  ss.  ,  A.  D.  19     .     Then  personally  appeared  the 

three   commissioners   above    named,    and   made   oath   that   they 
would  faithfully   and   impartially  execute   the   duties   assigned 
them  by  the  foregoing  warrant. 
Before  me, 

Justice  of  the  Peace. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Pursuant  to  your  warrant  to  us  directed,  dated  ,  A.  d. 

19  ,  we,  the  commissioners  therein  named,  having  been  first 
sworn,  according  to  law,  and  given  notice  to  all  persons  inter- 
ested as  therein  directed,  have  appraised  and  set  off  to  , 
widow  of  ,  late  of  ,  deceased,  an  estate  of 
homestead  to  the  value  of  eight  hundred  dollars,  bounded  and 
described  as  follows : 

Commissioners. 


The  undersigned,  being  all  the  persons  interested  in  the  fore- 
going report,  hereby  assent  thereto,  and  request  that  the  same 
be  confirmed  without  further  notice. 


Petition  for  Assignment  of  Dower. 

[The  names  of  guardians  of  minors  interested  should  be  stated.  If  part  of  the  land  of 
the  deceased  lies  in  common  with  others,  and  the  widow  wishes  her  dower  set  off  in  that 
also,  she  must  have  partition  made  by  like  proceedings  required  by  Revised  Laws,  c.  184, 
§  44.  This  may  be  done  by  annexing  to  the  petition  a  description  of  such  land,  the  de- 
ceased's share  therein,  and  the  names  of  the  co-tenants,  and  by  referring  thereto  in  the 
petition,  and  varying  tlie  prayer  accordingly.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for 

the  County  of 

Respectfully  represents  ,  of  ,    in   said   County, 

that  ,   late   of  ,   in   said   County  of  , 

deceased,     testate,  whose  estate  is  settled  in  this  Court,  died 

seized  of  certain  lands  in  this  Commonwealth;  that  she  is 


PROBATE    FORMS.  663 

his  widow  and  entitled  to  dower  in  said  lands;   that  her  right  is 
not  disputed  by  the  heirs;  and  that  the  names  and  resi- 

dences of  all  parties  now  interested  therein  are  as  follows: 

Name.  Residence. 


Wherefore  the  petitioner  prays  that  her  dower  in  said 

land  may  be  assigned  to  her  by  said  Court,  as  provided  by  law. 
Dated  this  day  of  ,  A.  D.  19       , 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
least  before  return  day,  or  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  being  one  day  at  least  before  return  day. 


Assignment  of  Dower  —  Warrant  —  Report. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You   are    appointed   commissioners  to  set  off  the  dower   of 
,  widow  of  ,  late  of  ,  in  said  County,   de- 

ceased, which  she  is  entitled  to  in  the  lands  of  which  he  died 
seized  in  this  Commonwealth. 

First,  being  sworn,  you  will  give  notice  to  all  persons  inter- 
ested of  the  time  and  place  appointed  by  you  for  setting  off  said 
dower,  and 

You  will  set  off  to  said  widow,  by  metes  and  bounds,  her 
dower  in  all  the  real  estate  of  which  said  deceased  died  seized 
in  this  Commonwealth,  if  it  can  be  so  done  without  damage  to 
the  whole  estate; 

But  if  the  estate  out  of  which  dower  is  to  be  assigned, 
consists  of  a  mill  or  other  tenement  which  cannot  be  divided 
without  damage  to  the  whole,  you  will  assign  to  said  widow  her 


664  APPENDIX. 

dower  of  the  rents,  issues  or  profits  thereof,  to  be  had  and 
received  by  her  as  teuant-in-coraraon  with  the  other  owners  of 
the  estate. 

You  will  cause  all  persons  interested,  who  are  satisfied  with 
your  doings,  to  certify  the  same  on  your  report,  and  will  return 
this  warrant,  with  your  doings  thereon,  as  soon  as  may  be,  to 
said  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 

,  ss.  A.  D.  19       .     Then  personally  appeared  the 

three  commissioners   above  named,   and  made  oath   that   they 
would  faithfully  and  impartially  execute  the  duties  assigned 
them  by  the  foregoing  warrant. 
Before  me, 

Justice  of  the  Peace. 


To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Pursuant  to  your  warrant  to  us  directed,  dated  ,  A.  d. 

19  ,  we,  the  commissioners  therein  named,  having  been  first 
sworn,  according  to  law,  and  given  notice  to  all  persons  inter- 
ested as  therein  directed,,  have  appraised  all  the  real  estate  in 
this   Commonwealth  of    which  ,  late  of  ,   in  said 

County  died  seized,  as  follows : 

>•  Commissioners. 

The  undersigned,  being  all  persons  interested  in  the  foregoing 
report,  hereby  assent  thereto,  and  request  that  the  same  be  con- 
firmed without  further  notice. 


PROBATE  FOKMS.  665 


Petition  for  Assignment  of  Real  Estate  in  Fee. 

[Superseded  by  R.  L.  chapters  132,  135,  140.] 
[The  names  of  the  guardians  of  minors  interested  must  be  stated.     If  part  of  the  land 
of  the  deceased  lies  in  common  with  others,  that  fact  must  be  stated,  and  a  de.scription  of 
such  land,  the  deceased's  sliare  therein,  and  the  names  of  the  co-tenants  inserted  in  or 
annexed  to  the  petition.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  of  ,  in   said  County  of 

,  that  ,  late  of  ,    in  said  County  of  , 

deceased,  intestate,  leaving  no  issue  living,  died  seized  of  certain 
real  estate  in  this  Commonwealth,  that  is  h     widow 

and  entitled  to  said  estate  in  fee  to  an  amount  not  exceeding 
five  thousand  dollars  in  value j 

and  that  the  names  and   residences  of  all  other  persons  now 
interested  therein  are  as  follows  : 

Name.  Residence. 


Wherefore  he  prays  that  said  estate  of  said  deceased  to  an 
amount  not  exceeding  five  thousand  dollars  in  value  may  be 
assigned  and  set  out  to  h  in  fee  by  said  Court,  as  provided 
by  law. 

Dated  this  day  of  ,  A.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  who  can  be  found 
within  the  Commonwealth  fourteen  days  at  least  before  return  day,  and  if 
any  one  can  not  so  be  found,  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


QQQ  APPENDIX. 


Assignment  of  Real  Estate  in  Fee  —  Warrant  — 
Eeport. 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You  are  appointed  commissioners  to  assign  and  set  off  in  fee, 
by  metes  and  bounds,  to  ,  widow  of  ,  late  of  , 

in  said-  County,   deceased,   the  real  estate  of  which  said 
died  seized  in  this  Commonwealth  to  an  amount  not  exceeding 
five  thousand  dollars  in  value. 

First,  being  sworn,  you  will  give  notice  of  the  time  and  place 
appointed  by  you  for  making  the  assignment  to  all  persons  in- 
terested who  are  known  and  within  the  Commonwealth,  and  to 
the  agent  of  any  absent  heir,  appointed  by  the  Court,  that 

they  may  be  present.     The  names  and  residences  of  all  parties 
interested  are  as  follows : 

You  will  appraise  all  said  real  estate,  and  you  will  make  as- 
signment thereof  to  the  amount  aforesaid,  according  to  law. 

You  will  cause  all  parties  who  are  satisfied  with  your  doings 
to  certify  the  same  on  your  report,  and  make  return  of  your 
doings,  together  with  this  warrant,  as  soon  as  may  be  to  this 
Court. 

Witness,  ,   Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 

,  ss.  ,  A.  D.  19     .     Then  personally  appeared  the 

three  commissioners   above   named,    and  made  oath   that  they 

would  faithfully  and  impartially  execute  the  duties   assigned 

them  by  the  foregoing  warrant. 

Before  me, 

Justice  of  the  Peace. 


PROBATE    FORMS.  667 

[The  report  will  not  be  confirmed  unless  all  parties  interested  have  assented  in  writing 
thereto,  or  have  been  duly  cited  and  had  an  opportunity  to  be  heard  thereon,  and  when  con- 
firmed a  certified  copy  should  be  recorded  in  the  Registry  of  Deeds.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 

County  of 

Pursuant  to  your  warrant  to  us  directed,  dated  ,  a.  d. 

19  ,  we,  the  commissioners  therein  named,  having  been  first 
sworn,  according  to  law,  and  having  given  notice  to  all  persons 
interested,  as  therein  directed,  have  appraised  all  the  real  estate 
in  this  Commonwealth,   of  which  ,  late  of  ,  in  the 

County  of  ,  died  seized,  as  follows : 

>•  Commissioners, 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  report,  and  request  that  the  same  be  con- 
firmed without  further  notice. 


Petition  for  Assignment  of  Widow's  Life  Estate. 

[P.  S.  124,  §  10]  [The  petitioner's  estate  of  Jv'J.OOO  in  fee  must  first  be  set  off.] 

[The  names  of  the  guardians  of  minors  Interested  should  be  stated.  If  part  of  the  land 
of  the  deceased  lies  in  common  with  others,  and  the  widow  wishes  her  life  estate  set  off  in 
that  also,  she  must  have  partition  made  by  like  proceedings  required  by  R.  L.  c.  184,  §  44. 
This  may  be  done  by  annexing  to  the  petition  a  description  of  such  land,  the  deceased's 
share  therein,  and  tlie  names  of  the  co-tenants,  and  by  referring  thereto  in  the  petition, 
and  varying  the  prayer  accordingly.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully    represents  ,    of  ,    in    said   County, 

that  ,  late  of  ,  in  said  County  of  ,  de- 

ceased, testate,  whose  estate  is  settled  in  this  Court,  died 

seized  of  certain  lands  in  this  Commonwealth;  that  she  is 

his  widow,  and  entitled  during  her  life  to  one-half  of  his  real 
estate  other  than  that  taken  by  her  in  fee  ;  that  her  right  is  not 
disputed  by  the  heirs  or  devisees  ;  and  that  the  names 


608  APPENDIX. 

and   residences  of   all    persons    now  interested  therein  are   as 
follows : 

Name.  Residence. 


Wherefore  she  prays  that  her  said  estate  may  be  assigned  to 
her  by  said  Court,  as  provided  by  law. 

Dated  this  day  of  ,  A.  D.  19     . 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  fourteen  days  at 
least  before  return  day,  or  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  being  one  day  at  least  before  return  day. 


Assignment  of  Widow's  Life  Estate  —  Warrant  — 
Report. 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You  are  appointed  commissioners  to  set  off  to  ,  widow 

of  ,  late  of  ,   in  said  County,   deceased,  during  her 

life,  one-half  of  the  real  estate  of  which  he  died  seized  in  this 
Commonwealth,  other  than  that  taken  by  her  in  fee. 

First,  being  sworn,  you  will  give  notice  to  all  parties  inter- 
ested of  the  time  and  place  appointed  by  you  for  setting  off  one- 
half  of  said  estate,  and 

You  will  set  off  to  said  widow,  by  metes  and  bounds,  one-half 
of  all  the  real  estate  of  which  said  deceased  died  seized  in  this 
Commonwealth,  other  than  that  taken  by  her  in  fee,  if  it  can  be 
so  done  without  damage  to  the  whole  estate. 

But  if  the  estate  out  of  which  one-half  is  to  be  assigned  con- 
sist of  a  mill,  or  other  tenement,  which  cannot  be  divided  with- 
out damage  to  the  whole,  you  will  assign  to  said  widow  one-half 


PROBATE   FORMS.  669 

of  the  rents,  issues,  or  profits  thereof,  to  be  had  and  received  by 
her  as  a  tenant-in-common  with  the  other  owners  of  the  estate. 

You  will  cause  all  persons  interested,  who  are  satisfied  with 
your  doings,  to  certify  the  same  on  your  report,  and  will  return 
this  warrant,  with  your  doings  thereon,  as  soon  as  may  be  to 
said  Probate  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,   this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 

,   ss.  ,  A.  D.    19     .     Then  personally  appeared 

the  three  commissioners  above  named,  and  made  oath  that  they 
would  faithfully  and   impartially  execute   the   duties   assigned 
them  by  the  foregoing  warrant. 
Before  me. 

Justice  of  the  Peace. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  fur  the 

County  of 

Pursuant  to  your  warrant  to  us  directed,  dated  ,  A.  D. 

19  ,  we,  the  commissioners  therein  named,  having  been  first 
sworn  and  given  notice  to  all  persons  interested,  as  therein 
directed,  have  appraised  all  the  real  estate  of  which  ,  late 

of  ,  in  said  County,  died  seized  in  this  Commonwealth, 

as  follows : 

>-  Commissioners. 

The  undersigned,  being  all  the  persons  interested  in  the  fore- 
going report,  hereby  assent  thereto,  and  request  that  the  same 
be  confirmed  without  further  notice. 


670  APPENDIX. 


Partition  of  Rkal  Estate  —  Among  Heirs. 

[The  names  of  the  guardians  of  minors,  who  are  interested  parties,  must  be  stated  ;  and 
parties  absent  from  the  State  must  have  agents,  appointed  by  the  Court  to  act  for  them.  If 
part  of  the  land  of  the  deceased  lies  in  common  with  others,  and  the  petitioner  wishes  that 
divided  also,  he  must  follow  the  directions  of  Revised  Laws,  c.  184,  §  44.  This  may  be 
done  by  annexing  to  the  petition  a  description  of  siich  land,  the  deceased's  shares  therein, 
and  the  names  of  the  co-tenants,  and  by  referring  thereto  in  the  petition,  and  varying 
the  prayer  accordingly.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Kespectfully  represents  ,   of  ,   in  the  County  of 

,  that     h         interested  in  the  real  estate  lying  in 

this  Commonwealth,  of  ,   late  of  ,    in   said  County 

of  ,  deceased,       testate,  whose  estate  is  in  course  of  set- 

tlement in  said  Court,  claiming  to  hold  as  of  said  deceased 

undivided  part    or  share    ,  which    he     wish     to  hold  in 
severalty : 

That  the  names  and  residences  of  all  the  other  persons  now 
interested,  and  their  respective  shares  and  proportions  thereof, 
are  as  follows,  and  are  not  in  dispute  nor  uncertain: 

Name.  Residence.  Share. 


Wherefore  your  petitioner    pray    that  partition  may  be  made 
of  all  the  real  estate  aforesaid,  according  to  law. 
Dated  this  day  of  ,  A.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  who  can  be  fojind 
within  the  Commonwealth  fourteen  days  at  least  before  return  day,  and  if 
any  cannot  so  be  found,  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  being  one  day  at  least  before  return  day. 


PROBATE   FORMS.  671 

Appointment  of  Agent  for  Absent  Persons. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  )  of  ,  in  said  County. 

In  the  matter  of  the  partition  of  real  estate  on  the  petition  of 

It  appearing  that 

interested  in  the  premises  absent  from  this  Commonwealth. 

You  are  appointed  agent  to  act  for  said 

in  all  things  relating  to  said  partition. 
Dated  this  day  of  ,  A.  d.  19 

Judge  of  Probate  Court. 


Partition  —  Notice  by  Commissioners. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  all  persons  interested  in  the  petition  of  ,  of  ,  in 

the  County  of  ,  noio  pending  in  this  Court,  and   to 

their  agents,  appointed  by  this   Court. 

Whereas  the  undersigned  have  been  ajipointed  Commissioners 
by  this  Court  to 

You  are  hereby  notified  to  appear  before  them  at  ,  in 

said  County  of  ,  on  the  day  of  ,  a.  d.  19       , 

at  o'clock  in  the         noon,  where  they  will  meet  to 


Dated  this  day  of  ,  a.  d.  19 


V  Commissioners. 


1  have  served  the  foregoing  notice  this  day  by  mailing,  post- 


G72  APPENDIX. 

paid,  a  copy  thereof  to  the  following  persons,  at  the  following 
addresses : 

,  ss.  A.  D.   19       .     Then    personally    appeared 

and  made  oatli  to  the  truth  of  the  above  return  by    h 
subscribed. 

Before  me, 

Justice  of  the  Peace. 


Partition  of  Real  Estate  among  Heirs  —  Warrant  — 

Report. 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You  are  appointed  commissioners  to  make  partition  of  all 
the    real    estate   of  ,    late   of  ,    in  said    County, 

deceased,  lying  within    this    Commonwealth,  which   any  party 
interested  requires    to    have    included    in    the    partition, 

among  the  of    said  deceased,    whose  names   and   shares 

are  as  follows : 

First,  being  sworn,  you  will  give  notice  of  the  time  and 
place  appointed  by  you  for  making  the  partition,  to  all  persons 
interested  who  are  known  and  within  the  Commonwealth,  and 
to  the  agent  of  any  absent  heir  appointed  by  the  Court, 

that  they  may  be  present. 

You  will  appraise  all  the  real  estate  of  which  said  deceased 
died  seized  in  this  Commonwealth,  which  any  party  interested 
as  aforesaid  desires  to  have  included  in  the  partition,  and  you 
will  make  partition  thereof  according  to  law. 

You  will  cause  all  parties  who  are  satisfied  with  your  doings 
to  certify  the  same  on  your  report,  and  those  to  whom  you  have 
awarded  money,  to  acknowledge  the  receipt  or  security  thereof, 
and  make  return  of  your  doings,  together  with  this  warrant,  as 
soon  as  may  be  to  this  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 


PROBATE   FOKMS.  673 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 

,  ss.  ,  A.  D.  19     .     Personally  appeared  the  three 

commissioners  above  named,  and  made  oath  that  they  would 

faithfully  and  impartially  execute  the  duties  assigned  them  by 

the  foregoing  warrant. 

Before  me, 

Justice  of  the  Peace. 


The  report  will  not  be  confirmed  until  all  money  awarded  is  paid  or  secured,  and  when 
confirmed  a  certified  copy  should  be  recorded  in  the  Registry  of  Deeds.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Pursuant   to   the   foregoing   warrant   to   us    directed,    dated 
,  A.  D.   19       ,    we,   the    commissioners   therein    named, 
having  been  first  sworn,   according  to  law,   and  having  given 
notice  to   all   persons   interested  as  therein  directed,  have  ap- 
praised all  the  real   estate    lying  in    this    Commonwealth,    of 
which  ,   late  of  ,    in  said  County,    deceased,   died 

seized,  and  which  was  required  to  be  included  in  the  partition, 
as  follows : 

Our  expenses  and  charges  are  as  follows : 


>-  Commissioners. 

The  undersigned,  being  all  persons  interested  in  the  fore- 
going report,  hereby  assent  thereto,  and  request  that  the  same 
be  confirmed  without  further  notice;  and  we,  to  whom  money 
is  awarded,  acknowledge  the  receipt  or  security  thereof. 

Citation  by  mailing,  post-paid,  or  delivering,  a  copy  to  all  persons  inter- 
ested or  their  agents  appointed  by  the  Court,  seven  days  at  least  before 
return  day. 


43 


67-1  APPENDIX. 


Petition  for  Partition  of  Real  Estate  among 
Tenants-in-Common. 

[The  names  of  the  guardians  of  minors  interested  should  be  stated  ;  and  persons  absent 
from  the  State  must  have  ageuts,  appointed  by  the  Court,  to  act  for  them.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 

County  of 

Respectfully  represents  ,  of  ,  in  the  County   of 

,  that    h       hold    as  tenant    -in-common  undivided 

part    or  share    of  the    following-described   real    estate, 

situated  in  ,  in  the  County  of  ,  which    he    wish     to 

hold  in  severalty,  to  wit: 

that  the  names  and  residences  of  all  the  other  tenants-in-common 
and  their  respective  shares  and  proportions  thereof,  are  as  fol- 
lows, and  are  not  in  dispute  nor  uncertain : 

Wherefore  your  petitioner    pray    that  partition  may  be  made 
of  all  the  real  estate  aforesaid,  according  to  law. 
Dated  this  day  of  ,  a.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  who  can  be  found 
within  the  Commonwealth  fourteen  days  at  least  before  return  day ;  and,  if 
any  one  cannot  so  be  found,  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


Partition  of  Real  Estate  among  Tenants-in-Common  — 
Warrant  —  Report. 

COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You  are  appointed  commissioners  to  make  partition  of  the 


PKOBATE   FORMS.  675 

real  estate  hereinafter  described  among  the  tenants-in-common 
thereof  whose  names  and  shares  are  as  follows,  to  wit : 

Said  real  estate  is  situated  in  ,  in  said  County  of  , 

and  is  bounded  and  described  as  follows,  to  wit: 

First,  being  sworn,  you  will  give  notice  of  the  time  and  place 
appointed  by  you  for  making  the  partition,  to  all  persons  inter- 
ested who  are  known  and  within  the  State,  and  to  the  agent  of 
any  absent  person  interested  in  the  premises  appointed  by  the 
Court,  that  they  may  be  present. 

You  will  appraise  all  said  real  estate,  and  you  will  make  par- 
tition thereof  according  to  law.  You  will  cause  all  parties  who 
are  satisfied  with  your  doings  to  certify  the  same  on  your  report, 
and  those  to  whom  you  have  awarded  money,  to  acknowledge 
the  receipt  or  security  thereof,  and  make  return  of  your  doings, 
together  with  this  warrant,  as  soon  as  may  be  to  this  Court. 

Witness,  ,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and 

Register. 

,  ss.  ,  A.  D.  19       ,     Then  personally  appeared  the 

three  commissioners  above  named,  and  made  oath  that  they 
M'ould  faithfully  and  impartially  execute  the  duties  assigned 
them  by  the  foregoing  warrant. 

Before  me, 

Justice  of  the  Peace. 


[The  report  will  not  be  confirmed  until  all  money  awarded  is  paid,  and  when  confirmed 
a  certified  copy  should  be  recorded  in  the  Registry  of  Deeds.  ] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Pursuant   to   the   foregoing   warrant   to   us    directed,    dated 

,    A.  D.   19       ,   we,    the    commissioners    therein    named, 

having  been  first  sworn,  and  having  given  notice  to  all  persons 

interested,  as  therein  directed,  have  appraised  all  the  real  estate 


676  APPENDIX. 

described  in  said  warrant,  and  which  was  required  to  be  included 
in  the  partition,  as  follows: 

Our  expenses  and  charges  are  as  follows ; 

Commissioners. 


The  undersigned,  being  all  persons  interested  in  the  fore- 
going report,  hereby  assent  thereto,  and  request  that  the  same 
be  confirmed  without  further  notice;  and  we,  to  whom  money  is 
awarded  or  distributed,  acknowledge  the  receipt  thereof. 


Petition  for  Partition  and  Sale  of  Real  Estate  among 
Tenants-in-Common. 

[R.  L.  c.  184,  §§  31,  33.] 

[The  names  of  the  guardians  of  minors  interested  should  be  stated  ;  and  persons  absent  from 

the  State  must  have  agents,  appointed  by  the  Court,  to  act  for  them.] 

To  the  Honorable  the  Judrje  of  the  Probate  Court  in  and  for  the 

County  of 

Respectfully  represents  ,    of  ,  in  the  County  of 

,  that    h      hold    as  tenant    -in-common  undivided 

part     or  share     of   the  following-described   real  estate, 

which    he  wish       to  hold  in  severalty,  to  wit: 

that  the  names  and  residences  of  all  the  other  tenants-in-com- 
mon, and  their  respective  shares  and  proportions  thereof,  are  as 
follows,  and  are  not  in  dispute  nor  uncertain : 

Name.  Kesidence.  Share. 


and  your  petitioner     further  represent     that  said  real  estate 
cannot  be  advantageously  divided. 

Wherefore  your  petitioner  pray  that  partition  may  be 
made  of  all  the  real  estate  aforesaid,  according  to  law,  and  to 
that  end  that  the  commissioners  appointed  to  make  said  parti- 


PROBATE    FORMS.  677 

tiou  be  ordered  to  make  sale  and  conveyance  of  said  real  estate 
at  public  auction  for  cash,  and  to  distribute  and  pay  over  the 
net  proceeds  of  the  sale  in  such  a  manner  as  to  make  the  parti- 
tion just  and  equal. 

Dated  this  day  of  ,  A.  d.  19 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  who  can  be  found 
within  the  Commonwealth  fourteen  days  at  least  before  return  day  ;  and,  if 
any  one  cannot  be  so  found,  by  publication  once  a  week  for  three  successive 
weeks,  the  last  publication  being  one  day  at  least  before  return  day. 


Sale  of  Lands  by  Commissioners — Bond. 

[R.  L.  c.  184,  §  47.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,   as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and  obliged  unto  ,   Esquire,    Judge   of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  office;  to  the  true  paj'ment  whereof  we  bind  our- 
selves and  each  of  us,  our  and  each  of  our  heirs,  executors,  and 
administrators,  jointly  and  severally,  by  these  presents.  Sealed 
"with  our  seals,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,    that    if    the 
above-bounden  ,   commissioners  appointed  by  said  Court 

to   make    partition  of  ,   who    have   been  ordered   by  said 

Court  to  make  sale  and  conveyance  of  said  ,  shall  account 


678  APPENDIX. 

for  and  dispose  of,  according  to  law  and  the  order  of  the  Court, 
all  proceeds  of  the  sale. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered  (  [SEAL.l 

in  the  presence  of  )  j-^^^^^  j 

(.  [seal.] 

ss.  ,  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 


Partition  of  Eeal  Estate  by  Sale  —  Tenants-in-Common 
—  Warrant  —  Report. 

COMMONWEALTH  OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To 

You  are  appointed  commissioners  to  make  partition  of  the  real 
estate  hereinafter  described  among  the  tenants  in-common  thereof 
whose  names  and  shares  are  as  follows : 

Said  real  estate  is  situated  in  ,  in  said  County  of  , 

and  is  bounded  and  described  as  follows,  to  wit : 

and  you  are  ordered  to  make  sale  and  conveyance,  at  any  time 
within  one  year  from  the  date  hereof,  of  the  whole  of  said 
lands. 

And  you  are  required  to  give  public  notice  of  the  time  and 
place  of  such  sale,  by  publishing  a  notification  thereof  once  in 
each  week  for  three  successive  weeks  in  the  ,  a  newspaper 

published  in  ,  in  said  County  of  ,  and,  within  one 

year  after  such  sale,  return  your  affidavit  of  having  given  such 
notice,  with  a  copy  thereof,  to  the  Probate  Court. 

You  are  ordered  to  distribute  and  pay  over  the  proceeds  of  the 


PROBATE   FORMS.  679 

sale  in  such  manner  as  to  make  the  partition  just  and  equal; 
and  if  any  distributive  share  of  the  money  arising  from  such 
sale  remains  unpaid  at  the  time  of  confirming  the  proceedings, 
or  establishing  the  partition,  you  are  directed  to  deposit  the 
same   in   the  Savings   Bank  ,    in   the    name   of   the 

Judge  of  said  Court,  for  the  time  being,  to  accumulate  for  the 
persons  entitled  thereto. 

Within  one  year  after  the  date  hereof,  you  are  required  to 
present  to  this  Court,  under  oath,  a  true  account  of  the  pay- 
ments made  by  you,  and  of  any  amount  deposited  as  aforesaid, 
together  with  the  original  certificate  or  other  evidence  of  any 
such  deposit,  and  also  to  return  this  order  and  the  receipts  of 
the  persons  whom  you  have  paid. 

Witness,  ,   Esquire,    Judge   of    said   Court,   at 

this  day  of  ,  in  the  year  of  our  Lord  one  thousand 


nine  hundred  and 


Register. 


,    ss.  ,    A.  D.    19     .     Then   personally  appeared 

the  commissioners  above  named  and  made  oath  that  they  would 
faithfully  and  impartially  execute  the  duties  assigned  them  by 
the  foregoing  warrant. 

Before  me, 

Justice  of  the  Peace. 


To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
Cou7ity  of 

Pursuant  to  the  foregoing  warrant  to  us  directed,  dated 
A.  D.  19  ,  we,  the  commissioners  therein  named,  having  been 
first  duly  sworn,  and  having  given  notice  as  therein  required, 
as  will  appear  by  affidavit  hereto  annexed,  have  made  sale  and 
co*iveyance  of  the  lands  therein  described  by  public  auction  to 
,  for  the  sum  of  dollars,  which  amount  was  bid  by 

the  said  ,  and  was  the  highest  bid  made  therefor  at  said 

auction. 

Our  expenses  and  charges  are  as  follows : 


680 


APPENDIX. 


We  have  distributed  and  paid  over  the  proceeds  of  said  sale 
as  follows,  to  wit : 


Names  of  Persons  Paid. 


We  severally  acknowledge  the  receipt 
of  the  sums  set  against  our  respec- 
tive names. 


The  distributive  share  of  ,  amounting  to  dollars, 

we  have  deposited  in  the  Savings  Bank  ,  as  directed 

in  said  warrant,  and  return  the  evidence  thereof  herewith. 


>  Commissioners' 

[This  should  be  filed  in  the  Probate  Court  immediately  after  the  sale.] 

We,  commissioners  appointed  to  make  partition,  do  testify 
and  say  that,  being  authorized  by  the  Probate  Court  for  the 
County  of  ,   on   the  day  of  ,   A.  d.    19     ,    to 

make  sale  of  the  real  estate  of  ,  for  the  purjjoses  in  the 

commission  set  forth,  we  gave  public  notice  of  the  time  and 
place  of  sale  by  publishing  a  notification  thereof  once  in  each 
week  for  three  successive  weeks  in  the  ,  a  newspaper  pub- 

lished in  ,  commencing  on  the  day  of  ,  A.  D. 

19     ,  and  the  following  is  a  true  copy  of  said  notices : 


Commissioners. 


,  88.  ,  A.  D.  19     .     Then  personally  appeared  the 

above-named  commissioners,  and  made  oath  to  the  truth  of  the 
above  affidavit  by  them  subscribed. 
Before  me, 

Justice  of  the  Pecice. 


PROBATE   FOKMS.  681 


Petition  for  Discharge  from  Guardianship. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Kespeetfully   represents  ,    of  ,   in   the   County  of 

,  that  by  a  decree  of  said  Court,  dated  the  day  of 

,  A.  D.  19     ,     he    was  adjudged  to  be  a  ,  and  , 

of  ,  in  the  County  of  ,  was  appointed  his  guardian; 

that  said  accepted  the  trust,  and  still  continues  to  have 

the  custody  of  the  person  of  your  petitioner,  and  the  manage- 
ment of  his  estate. 

Your  petitioner  further  represents  that  he  believes  that  he 
is  now  capable  of  managing  h  own  estate,  and  that  such  guar- 
dianship is  no  longer  necessary. 

Wherefore  your  petitioner  prays  that  h  said  guardian  may 
be  discharged. 

Dated  this  day  of  ,  A.  d.  19     . 

The  undersigned,  relatives,  friends,  and  neighbors  of  the 
above-named  ward,  believing  that  guardianship  of  said  ward  is 
no  longer  necessary,  hereby  concur  in  his  petition  for  his  dis- 
charge from  said  guardianship. 

Citation  by  delivering  a  copy  to  the  guardian  days  at  least  before 

return  day,  or  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


Petition  for  Removal. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 

County  of 

Respectfully  represents  ,  of  ,  in  said  Countj'^  of 

,   that         he         is  ,  of  ,  of  ,   in   said 

County  of  ,  and  is  interested  in  the  estate  of  said 


682  APPENDIX. 

,  that  by  a  decree  of  said  Court,  dated  the  day  of 

,  A.  D.   19     ,  of  ,  in  said  County  of  , 

was   appointed  of   said  ,  and   letters  of  were 

issued  to  him: 
That 

and  is  evidently  unsuitable  for  the  discharge  of  said  trust. 

Wherefore    your   petitioner      prays    that    said  may    be 

removed  from  his  said  office  and  trust. 

Dated  this  day  of  ,  A.  d.  19     . 

Citation  by  delivering  a  copy  days  at  least  before  return  day. 


Petition  for  Discharge  of  Surety  on  Bond. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  of  ,  in  the  County  of 

,  that  by  a  decree  of  said  Court,  dated  the  day  of 

,   A.  D.   19     ,  of  ,   in    the  County  of  , 

was  appointed  of  ,   and  gave  bond  for  the  faithful 

discharge  of  said  trust;  that  your  petitioner  is  one  of  the  sure- 
ties on  said  bond ;  that  the  other  surety  on  said  bond  is  , 
of  ,  in  said  County  of  ;  tliat  the  estate  of  said  de- 
ceased is  not  3'et  fully  administered;  and  your  petitioner 
is  unwilling  to  remain  longer  liable  as  surety  on  said  bond,  for 
the  reason  that 

Wherefore  your  petitioner  prays  that  he  may  be  discharged 
from   all   further   responsibility  as  svich  surety,   and  that   said 
may  be  ordered  to  furnish  a  new  bond. 
Dated  this  day  of  ,  A.  D.  19     . 

The  undersigned,  being  all  the  persons  interested  in  the  fore- 
going petition,  request  that  the  prayer  thereof  be  granted  with- 
out further  notice. 

Citation  by  delivering  a  copy  to  the  co-surety  fourteen  days  at  least  before 
return  day,  and  by  publication  once  a  week  for  three  successive  weeks,  the 
last  publication  to  be  one  day  at  least  before  return  day. 


PROBATE    FORMS.  683 


Kesignation. 


To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 

County  of 
Respectfully  represents  that  it  is  inconvenient  for 

any  longer  to  serve  as 

he     therefore  respectfully  resign     said  trust,  and  ask    to  have 
resignation  accepted. 
Dated  this  day  of  ,  A.  d.  19     , 


Declination. 


To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

It  being  inconvenient  for  to  discharge  the  duty  of  ex- 

ecut         trustee  of  the  last  will  and  testament  of  , 

late   of  ,    iu    said    County   of  ,    deceased,  do 

hereby  decline  that  trust. 

Dated  this  day  of  ,  a.  d.  19     . 


Petition  fok  Notice  of  Appointment. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  ,  of  the  ,  of  ,  late 

of  ,  in  said  County  of  ,  deceased,      testate,  that  on 

the  day  of  ,    a.  d.    19        ,    he   gave   bond  for  the 

faithful  discharge  of  his  said  trust,  and  that   by  accident  and 
mistake  the  notice  of    his    appointment  was  not  given  within 
three  months  from  said  date :  wherefore     he     pray     that    he 
vavLj  be  ordered  to  give  said  notice  within  such  further  time  as 
the  Court  may  order. 

Dated  this  day  of  ,  19       . 


684  APPENDIX. 

Petition  to  takk  Deposition  to  Will. 

[R.  L.  c.  175,  §  26.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Kespectfully  represents  ,  of  ,  that  an  instrument 

purporting  to  be  tlie  last  will  and  testament  of  ,  late 

of  ,  deceased,  wherein  your  petitioner  is  named  execut      , 

has  been  presented  to  said  Court  for  probate,  and  that  a  citation 
has  been  issued  to  all  parties  interested  to  appear  at  a  Probate 
Court,    to   be   held   at  ,  on  the  day  of  ,  A.  d. 

19  ,  to  show  cause,  if  any  they  have,  why  said  instrument 
should  not  be  proved  and  allowed  as  the  last  will  and  testament 
of  said  deceased. 

And  your  petitioner  further  represents  that  of  the  subscribing 
witnesses  to  said  instrument,  to  wit: 

and  that 

is  absent  from  the  Commonwealth,  sick,  infirm,  aged  , 
so  as  to  make  it  probable  that  he  will  not  be  able  to  attend  in 
the  Probate  Court  and  give  h     testimony. 

Wherefore  your  petitioner  prays  that  a  commission  from  said 
Court  may  issue  to  take  the  deposition  of  the  said  as  a 

subscribing  witness  to  said  instrument. 

Dated  this  day  of  ,  A.  d.  19 

Let  the  commission  as  prayed  for  be  issued. 

Judge  of  Probate  Court. 


probate  fokms.  685 

Deposition  of  Witnesses  to  Will. 

COiMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  or  any  Commissioner  appointed  hy  the  Governor  of 

said  Commonwealth  of  Massachusetts^  Justice  of  the  Peace^ 
Notary  Public,  or  other  officer^  legally  empowei-ed  to  take 
Depositions  or  Affidavits^  in  the  State  of  , 

Greeting  : 
Whereas  ,  of  ,  in  the  County  of  ,  has  pre- 

sented   to    said    Court    for    probate  instrument      ,    hereto 

annexed,  purporting  to  be         the  last  will  and  testament 
of  ,  late  of  ,  in  the  County  of  ,  deceased,  and 

has  requested  that  the  deposition  of  , 

of  ,   in   said  State  of  ,   witness  thereto,   may 

be  taken : 

Now,    therefore,    you   are   by  these  presents  authorized  and 
empowered  to  take  the  deposition  of  the  said 

and  to  this  end  to  cause  the  said  deponent  to  come  before  you, 
and  the  dejwnent  after  having  been  sworn  to  testify  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  relating  to  the 
cause  for  which  the  deposition  is  taken,  to  be  examined,  and 
h  testimony  taken  in  writing.  And  you  are  to  take  such 
deposition  separate  and  apart  from  all  other  persons,  and  to 
permit  no  person  to  be  present  during  such  examination  except 
the  deponent  and  yourself.  And  you  are  to  put  the  several 
interrogatories  subjoined  to  the  deponent  in  their  order,  and 
to  take  the  answer  of  the  deponent  to  each  fully  and  clearly 
before  proceeding  to  the  next,  and  not  to  read  to  the  deponent 
nor  permit  the  deponent  to  read,  a  succeeding  interrogatory 
until  the  answer  to  the  preceding  has  been  fully  taken  down. 
And  when  you  shall  have  completed  the  examination  aforesaid, 
the  same  so  taken  and  subscribed  is  to  be  returned,  together 


686  APPENDIX. 

with  this  Commission  and  your  doings  herein,  enclosed,  sealed, 
and  directed  to  the  Register  of  said  Court,  at  ,  in  said 

County  of 

Given  under  the  seal  of  said  Court. 

Witness,  Esquire,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Eegister. 

1st.    Examine   the    instrument    hereto    annexed,    and   state 
whether  or  not  you  signed  your  name  thereto  as  a  witness. 
Answer : 

2d.    State   whether   or   not  therein   described   as   the 

testat       signed  h     name  to  said  instrument  as  and  for 
h      last  will  and  testament  in  your  presence,  and  where  the 
same  was  so  signed. 

Answer : 

3d.    State  whether  or  not  you  signed  your  name  as  a  witness 
thereto  in  the  presence  of  said  testat       and  at  h       request. 
Answer : 

4th.  State  whether  or  not  either  of  the  other  witne'^ses 
thereto  signed  his  or  her  name  as  a  witness  in  presence  of  said 
testat  and  at  h  request,  and  give  the  name  of  each  witness 
who  so  signed. 

Answer; 

5th.  State  whether  in  your  opinion  said  testat  ,  at  the  time 
of  signing  said  instrument,  was  of  sound  or  unsound  mind  and 
whether    he  was  of  the  full  age  of  twenty-one  years. 

Answer: 

State  of  ,  ss. 

Pursuant  to  the  foregoing  commission,  I  caused  the  said 
to  come  before  me  on  the  day  of  ,  A.  d.  19       ,  and 

after  having  sworn  the  said  to  testify  the  truth,  the  whole 

truth,  and  nothing  but  the  truth,  relating  to  the  cause  for  which 
the  deposition  is  taken,  I  examined  the  said  and  reduced 


PROBATE   FORMS.  687 

h  testimony  to  writing.  In  taking  the  deposition  I  put  tlie 
interrogatories  to  the  -deponent  as  directed  in  the  foregoing 
commission,  and  in  all  respects,  fully  and  exactly  complied 
with  the  directions  in  said  commission.  And  after  said  depo- 
sition was  taken,  I  carefully  read  the  same  to  the  said  and 

he       subscribed  it  in  my  presence. 


Appointment  of  Agent. 
COMMONWEALTH   OF  MASSACHUSETTS. 
,  ss.  Pkobate  Court. 

Know  all   men,    that   I,  ,   of  ,   in   the   State  of 

,  appointed  by  said  Court  executor  —  administra- 

tor —  guardian  —  trustee,  of  the  estate  will  of  ,  late 

of  ,  in    said   County   of  ,  deceased,  under   and    in 

compliance  with  the  provisions  of  Chapter  139  of  the  Revised 
Laws   of    said    Commonwealth,    do    hereby   appoint  ,   of 

,  in  the  County  of  ,  and  Commonwealth  aforesaid, 

as  my  agent,  and  I  do  hereby  stipulate  and  agree  that  the 
service  of  any  legal  process  against  me  as  such  executor  — 
administrator  —  guardian  —  trustee,  if  made  on  said  agent, 
shall  be  of  the  same  legal  effect  as  if  made  on  me  personally 
within  said  Commonwealth. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal 
this  day  of  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and 

Signed,  sealed,  and  delivered 
in  presence  of 

I,  the  above-named         hereby  accept  the  above  appointment. 

[^Address.'] 


688  APPENDIX. 

Embezzlement  —  Complaint. 

[R.  L.  c.  162,  §  43.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

,  of  ,  in  said  County  of  ,  on  oatli  complains 

that      he      has  good  cause  to  suspect,   and  does  suspect,  that 
,  of  ,  in  the  County  of  ,  ha     fraudulently 

received,  concealed,  embezzled,  and  conveyed  away  certain  arti- 
cles of  personal  property  belonging  to  the  estate  of  ,  late 
of             ,  in  the  County  of             ,  deceased,  to  wit : 

That  your  complainant  is  and  is  interested  in  said  estate. 

Wherefore    he     prays  that  said  may  be  cited  to  appear 

before  said  Court,  to  be  examined  upon  oath  upon  the  matter  of 
this  complaint,  and  that  such  further  proceedings  may  be  had 
in  the  premises  as  the  law  requires. 

Dated  this  day  of  ,  A.  d.  19 

,  ss.  ,  A.  D.   19     .     Then  personally  appeared 

and  made  oath  that  the  above  complaint,  by  sub- 

scribed, is  true. 

Before  me, 

Justice  of  the  Peace. 

Let  citation  issue  as  prayed  for. 

Judge  of  Probate  Court. 
Dated  ,  19 

Citation  by  delivering  a  copy  of  the  complaint,  days  at  least  before 

return  day. 


PROBATE    FORMS.  689 

Appointment  of  Guardian  ad  Litem  and  Next  Friend. 

COMxMONVVEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

At  a  Probate   Court  holden  at  ,  in  said  County^  on  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and 
Whereas,  in  the  matter  of  ,  it  appears  that  is 

a  minor        ,    and  interested   in    said  case,    and   ha        no  legal 
guardian,  therefore  ,  of  ,    in  the  County  of  , 

is  hereby  appointed  to  act  as  guardian  ad  litem  or  next  friend 
for  such  person     ,  to  represent      h       interest  in  said  case. 

Judge  of  Probate  Court. 

I  hereby  accept  the  above  appointment. 

,  ss.  ,  A.  d.  19     .     Personally  appeared 

and  made  oath  that  he  would  faithfully  and  impartially  perform 
the  duty  reposed  in  him  by  the  foregoing  appointment. 

Justice  of  the  Peace. 

Having  fully  examined  and  considered  the  matter  of  ,  I 

hereby  assent  to  the 


Petition  for  Widow's  Allowance. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  that  ,  late  of  ,  in 

said  County,  whose  estate  is  in  course  of  settlement  in  said 
Court,  died  possessed  of  personal  estate ;  that  she  is  his  widow, 
and  has  under  her  charge  a  family  consisting  of 

Wherefore,  she  prays  that  the  Court  will  allow  her  part  of 
the  personal  estate  of  said  deceased  as  necessaries  for  herself 
and  family  under  her  care,  in  addition  to  the  provisions  and 
other  articles  by  law  belonging  to  her. 

Dated  this  day  of  ,  A.  d.  19       . 

44 


690  APPENDIX. 


Claim  of  Appeal. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 

County  of 

Represents  ,    of  ,  in  the  County  of  ,    that 

he  is  a  ,  of  ,  late  of  ,  in  the  County 

of  ,   deceased,  and  interested    in    the    estate  of    said 

deceased;  that    he  is  aggrieved  by  a  decree  of  the  Probate  Court 

held  at  ,  in   said   County   of  ,  on   the  day   of 

,  A.  D.  19     ,  whereby  said  Court 

And     he     hereby  give         notice  that     he     claim     an  appeal 
from  said  decree  to  the  Court. 

Dated,  this  day  of  ,  19     . 


Petition  for  Lease  of  Keal  Estate  by  Guardian. 

[A  description  of  the  real  estate,  sufficient  to  enable  parties  interested  to  identify  it,  must 
be  given,  and  the  reason  why  it  would  be  for  the  interest  of  the  ward  to  have  it  leased.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  guardian  of  ,  of  , 

in  said  County  of  ,  minor,  that  said  ward  interested 

in  certain  real  estate,  to  wit: 

that  it  is  necessary,  expedient,  and  for  the  benefit  of  said  ward 
that  a  written  lease  of  said  real  estate  be  made  for  the  reason 
that 

a  copy  of  the  proposed  lease  is  hereto  annexed. 

Wherefore  said  guardian  prays  that  he  may  be  authorized  to 
lease  the  same  as  aforesaid,  or  upon  such  terms  as  may  be 
adjudged  best. 

The  undersigned,   being   all   the   heirs   presumptive  of   the 


PROBATE   FORMS. 


691 


minor     named  in  the  foregoing  petition,   hereby  consent  that 
the  same  may  be  granted. 

Citation  by  publicatiou  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


Appearance. 
PROBATE  COURT. 


No. 

Estate  of 

In  the  matter  of 


Enter 


To  THE  Register. 
appearance  for 


Address 

Filed  ,  19     . 


Attorney. 


Register. 


Petition  in  Equity. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  petitioner  ,  that     he 

bring    this  petition  against 

respondents,  ,  and  allege  them  to  be  all  the  partiee  inter- 

ested in  the  matter  of  said  petition,  and  further  represent 


Dated  this 


day  of 


.19 


692  APPENDIX. 

The  undersigned,  being  all  the  persons  interested  in  the  sub- 
ject matter  of  the  abuve  petition,  hereby  accept  service  of  the 
same. 


Citation  by  serving  respondents  witli  copy  of  citation,  or  leaving  at  usual 
place  of  al)ode,  or  by  mailing  to  last  known  address,  fourteen  days  at  least 
before  return  day  ;  and  unless  respondents  have  actual  notice,  citation  must 
be  published  once  a  week  for  three  successive  weeks,  the  last  publication  to 
beiseveu  days  at  least  before  return  day. 


Decree  in  Equity. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

In  Equity,  ,  19     . 

On  the  petition  in  equity  of  ,  petitioners,  against 

respondents,  praying 

it  appearing  that  notice  according  to  the  order  of  the  Court  has 
been  given  all  parties  interested 

person  objecting,    after  hearing  and  consideration,   the  Court 
doth  order  and  decree 


Petition  for  Appointment  as  Conservator  of  Property 
OF  AGED  Person. 

[R.  L.  c.  145,  §  40.] 

[This  application  must  be  made  by  the  aged  person  himself,  or  by  one  or  more 
of  his  friends.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represent         ,  of  ,  in  the  County  of  , 

that  ,  a  resident  of  ,  in  said  County  of  ,  has 


PKOBATE   FORMS.  693 

become  incapacitated  by  reason  of  advanced  age  and  mental 
weakness  to  properly  care  for  his  property.  Your  petitionees 
therefore  pray     that  ,  of  ,  in  the  County  of  , 

or  some  other  suitable  person,  may  be  appointed  conservator  of 
the  property  of  said  ,  agreeably  to  the  law  in  such  case 

made  and  provided. 

Dated  this  day  of  a.  d.  19     . 

Citation  by  serving  aged  or  mentally  weak  person  with  copy  of  order, 
fourteen  days  at  least  before  return  day. 


Conservator's  Bond. 

[R.  L.  c.  145,  §§  40,  41.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,   as  prin- 

cipal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within  the 

Commonwealth  of  Massachusetts,  are  holden  and  stand  firmly 
bound  and  obliged  unto  ,  Esquire,  Judge  of  the  Probate 

Court  in  and  for  the  County  of  ,  in  the  full  and  just  sum 

of  dollars,  to  be  paid  to  said  Judge  and  his  successors  in 

said  office;  to  the  true  payment  whereof  we  bind  ourselves  and 
each  of  us,  our  and  each  of  our  heirs,  executors,  and  administra- 
tors, jointly  and  severally  by  these  presents.  Sealed  with  our 
seals,  and  dated  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above  bounden  conservator  of  the  property  of  ,  of  , 

in  said  County  of  ,  a  person  incapacitated  by  reason  of 

advanced  age  or  mental  weakness  to  propgrly  care  for  his  prop- 
erty, shall, 

Firsts  make  and  return  to  said  Probate  Court,  at  such  time  as 
it  may  order,  a  true  inventory  of  all  the  real  and  personal  estate 
of  said  person  that  at  the  time  of  the  making  of  such  inven- 
tory shall  have  come  to  the  possession  or  knowledge  of  said 
conservator ; 

Second,  manage  and  dispose  of  all  such  estate  according  to 


694  APPENDIX. 

law  and  for  the  best  interests  of  said  person,  and  faithfully  dis- 
charge h         trust  in  relation  to  such  estate; 

Thirds  render  upon  oath,  at  least  once  a  year,  until  h 
trust  is  fulfilled,  unless  he  is  excused  therefrom  in  any  year 
by  said  Court,  a  true  account  of  the  property  in  h  hands, 
including  the  proceeds  of  all  real  estate  sold  or  mortgaged  by 
h  and  of  the  management  and  disposition  thereof,  and  also 
render  such  account  at  such  other  times  as  said  Court  may 
order;   and 

Fourth,  at  the  expiration  of  h         trust,  settle  h         account 
in  said  Court,  or  with  said  person  or  h         legal  representatives, 
and  pay  over  and  deliver  all  the   estate  remaining  in  h 
hands,  or  due  from  h         on  such  settlement,  to  the  person  or 
persons  lawfully  entitled  thereto  ; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

,  ss.  ,  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  conservator,  declare  that,  to  the 

best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 
within-named  do  not  exceed  in  value  the  following-men- 

tioned sums,  viz. : 

Eeal  Estate,  f 

Personal  Estate,   $  . 

[sign] 


PROBATE   FORMS.  G9o 

Conservator's  Letter. 

COMMONWEALTH   OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,    of  ,  in   the   County  of  ,  and  Common- 

loealth  aforesaid. 
You  are  appointed  conservator  of  the  property  of  ,  a 

resident  of  ,  in  said  County  of 

a  person  incapacitated  by  reason  of  advanced  age  and  mental 
weakness  to  properly  care  for  h  property,  with  full  power  and 
authority  to  take  possession  of  all  real  and  personal  estate  of 
said  person,  and  to  have  the  charge  and  management  thereof 
subject  to  the  direction  of  said  Court,  and 

You  are  required  to  make  and  return  into  said  Probate  Court, 
within  three  months  from  the  date  hereof,  a  true  inventory  of 
all  the  real  and  personal  estate  of  said  person  which  at  tlie  time 
of  the  making  of  such  inventory  shall  have  come  to  your  pos- 
session or  knowledge ; 

To  manage  and  dispose  of  all  such  estate  according  to  law  and 
for  the  best  interests  of  said  person,  and  faithfully  to  discharge 
your  trust  in  relation  to  such  estate; 

To  render,  upon  oath,  a  true  account  of  the  property  in  your 
hands,  including  the  proceeds  of  all  real  estate  sold  or  mort- 
gaged by  you,  and  of  the  management  and  disposition  of  all 
such  property,  at  least  once  a  year,  until  your  trust  is  fulfilled, 
unless  excused  therefrom  in  any  year  by  said  Court ; 

At  the  expiration  of  your  trust,  to  settle  your  accounts  in  said 
Court,  or  with  said  person,  or  h  legal  representative,  and  to 
pay  over  and  deliver  all  the  estate  and  effects  remaining  in  your 
hands,  or  due  from  you  on  such  settlement,  to  the  person  or  per- 
sons lawfully  entitled  thereto. 

Witness,  ,  Esquire,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Begister. 


g96  APPENDIX. 

Injunction. 
COMMONWEALTH   OF   MASSACHUSETTS. 
,  ss.  Probate  Court. 

To 

and  all  Servants,  Agents,  Attorneys,  and  Counsellors,  acting 
for  or  in  behalf  of  you  or  either  of  you, 

Greeting  : 
Whereas,   it   has  been   represented  to  said  Court  by  , 

petitioner  ,  that  he  ,  said  petitioner  ,  ha  exhibited  a  Bill 
of  Complaint  in  our  said  Court  against  you,  the  said 

which  said  Bill  is  filed  in  the  office  of  the  Register  of  said 
Court  at  ,  in  and  for  our  said  County  of  ,  wherein 

said  petitioner  ,  among  other  things,  pray  for  a  Writ  of  In- 
junction against  you,  the  said  respondent  ,  to  restrain  you  and 
the  persons  before  named  from  proceeding  to  do  what  you  are 
hereinafter  enjoined  from  doing  : 

We,  therefore,  in  consideration  of  the  premises,  do  strictly 
enjoin  and  command  you,  the  said  respondent  ,  and  all  and 
every  the  persons  before  named,  to  desist  and  refrain  from 

until  the  further  order  of  said  Court. 

Witness,  ,  Esquire,  Judge  of  said  Court  at  ,  the 

day   of  ,    in  the  year  of   our    Lord   one  thousand 

nine  hundred  and 

HegisteK 


Petition  for  Leave  to  deposit  Legacy. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  that       he       is       execut         of 

the  will  of  ,  late  of  ,  in  said  County  of  , 


PROBATE    FORMS.  697 

deceased;  that  by  the  terms  of  said  will  a  legacy  of 

dollars  was  bequeathed  to 

that  the  residence  of  said  legatee  is  unknown  to  your 
petitioner;  that  the  said  legatee  is  minor,  and  has  no  legal 
guardian. 

Wherefore  your  petitioner     pray    that    he    may  he  allowed 
to  deposit  said  legacy  in  the  ,  in  the  name  of  the 

Judge  of  said  Court,  or  to  invest      t      in 

to  accumulate  for  the  benefit  of  the  person  entitled  thereto. 
Dated  this  day  of  ,  19     . 


Petition  for  Payment  of  Deposit. 

[R.  L.  c.  150,  §  23.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully    represents  ,  of  ,    in   the  County   of 

,  that  he  is  an  heir-at-law  of  —  guardian  of  —  lega- 
tee under  the  will  of  ,  late  of  ,  in  said  County 
of             ,  deceased;  that  by  an   order  of   said  Court,  dated   the 

day  of  ,  19     ,  ,  administrat       — execut 

of   the  estate  —  will    of  said    deceased,    deposited    the    sum  of 
dollars  in   the  Savings  Bank  on  the  day  of 

,  A.  D.  19     ,  in  the  name  of  the  Judge  of  said  Court,  to 
accumulate  for  the  benefit  of  your  petitioner; 

that  your  petitioner  is  the  person  for  whose  benefit  said  deposit 
was  made,  and  is  entitled  to  said  sum  of  dollars  deposited 

as  aforesaid,  and  to  the  accumulations  thereon. 

Wherefore  your  petitioner  prays  that  said  bank  be  ordered  to 
pay   to  h      said  sum  of  dollars   and   the    accumulations 

thereon. 

Dated  the  day  of  ,  A.  d.  19     . 

,  ss.     Subscribed  and  sworn  to  this  day  of 

A.  D.  19     . 
Before  me, 

Justice  of  the  Peace. 


698  APPENDIX. 

Petition  by  Minor  for  License  to  Marry. 

[U.  L.  c.  151,  §  20.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  that    he  is  a  minor  of  the  age 

of  years,    and   a   resident    of  ,    in    said   County  of 

;  that      he    desires    to    marry  ,    of  ,   in    the 

County  of  ,  who   is  years    of    age;    and   that 

h  father,  —  mother,  —  guardian,  consents  hereto;  he  there- 
fore prays  that  an  order  may  be  made  allowing  h  to  marry 
the  said 

Dated  at  ,  the  day  of  ,  a.  d.  19 

I,  ,  being  the    father,  —  mother,  —  guardian  of  said 

minor,  consent  to  granting  the  order  asked  for  in  the  above 
petition. 


Guardian  ad  litem  and  next  Friend  —  Account. 

[R.  L.  c.  150,  §  22.] 

COMMONWEALTH  OF  MASSACHUSETTS. 
,  ss.  Probate  Court. 

At  a  Probate  Court  holden  at  ,  in  said  County,  on  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and 

"Whereas,  in  the  matter   of   the  settlement  of  the  ac- 

count of 

it  appears  that  there  may  be  persons  unborn  or  unascertained  who 

are  or  may  become  interested  in  said  account;  —  that         ,  who 

or  may  become  interested  in  said  account        legally  in- 


PROBATE   FORMS.  699 

competent  to  act  in  h  own  behalf,  and  h  no  legal  guardian, 
other   than   the  accountant;  therefore  ,   of  ,   in   the 

County  of  ,  is  hereby  appointed  to  act  as  guardian 

ad  litem  or  next  friend  for  such  persons,  to  represent  h  in- 
terest in  said  account,  and  to  examine  said  account  and  the 
vouchers  therefor  and  the  securities,  and  report  to  this  Court. 

Judge  of  Probate  Court. 

I  hereby  accept  the  above  appointment. 

,  ss.  A.  D.  19     .     Personally  appeared  ,  and 

made  oath  that  he  would  faithfully  and  impartially  perform  the 
duty  reposed  in  him  by  the  foregoing  appointment. 

Justice  of  the  Peace. 

Having  fully  examined  the  above-described  account,  with 
the  vouchers  therefor  and  the  securities,  I  hereby  assent  to  the 
allowance  of  the  same. 

Guardian  ad  litem  and  next  friend. 


Representation  of  Insolvency  —  Examination  op 
Claims  by  Court. 

[R.  L.  c.  142,  §§  4,  5,  9.] 

[The  executor  or  administrator  must  present  with  this  petition  a  list  of  all  persons  claiming 
to  be  creditors  of  the  estate  so  far  as  known  to  him.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents 

administrat  of  the   estate  of  ,   late  of  , 

in  said  Countj'  of  ,  deceased,  appointed  on  the  day 

of  ,  A.  D.  19     ,  that  within  three  months  from     h       said 

appointment  he    caused  notice  thereof  to  be  given  as  or- 

dered by  the  Court,  that  the   debts  claimed  as  owed  by  the 


700  APPENDIX. 

deceased  at  tlie  time  of  liis  death,  according  to  the  list  hereto 
a])pended,  amount  to  $ 

The  necessary  funeral  expenses,  to  $ 

The  allowance  by  the  Court  for  necessaries  to  the 

widow,  to  $ 

The  charges  of  administration,  including  future  prob- 
able charges,  to  $ 
Amounting  in  the  whole  to  the  sum  of              $ 
That  all  the  estate  of  the  deceased  known  to  be  charge- 
able with  the   payment   thereof,   is   as    follows, 
viz. : 
Eeal  Estate  not  exceeding  in  value                          $ 
Personal  Eestate  not  exceeding  in  value                $ 
and  other  Personal  Estate  not  mentioned  in 

the  inventory  $ 

Balance  $ 

And  your  petitioner  ,  believe  that  said  estate  will  prob- 
ably be  insolvent,  for  the  reason  th^t 

he  therefore  pray  the  Court  to  receive  and  examine  all  claims 
of  creditors  against  the  estate,  and  cause  a  list  of  all  claims 
presented  for  proof,  with  the  amount  allowed  or  disallowed  on 
each  claim,  to  be  made  and  certified  hy  the  Register  of  said 
Court  pursuant  to  the  law  in  such  case  made  and  provided. 

Dated  this  day  of  A.  d.  19     . 

i  Admr, 

,  ss.  A.  D.  19     .     Then  personally  appeared  said 

and  made  oath  that  the  above  is  a  correct  representation 
of  the  probable  condition  of  said  estate,  according  to  the  best  of 
h  knowledge  and  belief. 

Before  me, 

Justice  of  the  Peace, 


PROBATE    FORMS.  701 

Insolvency — Order  to  Administrator  to  notify  Credi- 
tors  TO   PRESENT  ClAIMS. 

[R.L.  c.l42,§5.] 

COMMONWEALTH  OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  administrat        of  the  estate  of  ,  late  of  , 

in   said  County  of  ,  deceased,  intestate,  represented 

insolvent  : 

You  are  hereby  ordered  to  notify  all  known  creditors  of  said 

insolvent  estate  that  the  Court  will  receive  and  examine  all 

claims  of  creditors  against  said  estate  at  the  Probate  Court  to  be 

holden  at  ,  in  and  for  said  County  of  ,  on  the 

day  of  A.  D.  19     ,  and  on  ,  the  day  of 

A.  D.  19     ,  at  nine  o'clock  in  the  forenoon,  respectively, 

that  they  may  then  and  there  present  and  prove  their  claims. 

And  you  are  ordered  to  give  to  all  known  creditors  at  least  seven 
days  written  notice,  by  mail  or  otherwise,  of  the  time  and  place 
of  each  meeting,  and  cause  notices  to  be  published  once  in  each 
week  for  three  successive  weeks  in  the  ,  a  newspaper  pub- 

lished  in  ,   the  last  publication  to  be  one  day  at  least 

before  said  first  meeting. 

Six  months  from  the  date  hereof  are  allowed  to  creditors 
within  which  to  present  and  prove  their  claims. 

You  will  make  return  hereof,  with  your  doings  hereon,  on  or 
before  the  date  of  said  first  meeting  ,  19     . 

Witness,  ,  Esquire,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in   the  year   of   our   Lord  one  thousand 

eight  hundred  and  ninety- 

I  have  served  the  foregoing  order  as  therein  directed. 

Register. 

,  ss.  19     .     Then  personally  appeared  ,  and 

made  oath  to  the  truth  of  the  above  return  by  him  subscribed. 
Before  me, 

Justice  of  the  Peace, 


702  APPENDIX. 


Form  of  Administrator's  Notice  to  Creditors  of  Insol- 
vent Estate. 

Estate  of  ,  late   of  ,  in  the  County  of  ,  de- 

ceased, intestate,  represented  insolvent. 

The  Probate  Court  for  said  County  will  receive  and  examine 
all   claims  of   creditors   against   the  estate  of  said  ,    and 

notice  is   hereby  given  that  six  months  from  the  day  of 

,  A.  D.  19  ,  are  allowed  to  creditors  to  present  and  prove 
their  claims  against  said  estate,  and  that  the  Court  will  receive 
and  examine  the  claims  of  creditors  at  ,  on  the  day 

of  ,  19     ,  at  nine  o'clock  in  the  forenoon,  and  at  , 

on   the  day   of  ,    19     ,  at    nine    o'clock    in   the 

forenoon. 

[■  Administrat 


Petition  by  Special  Administrator  for   Leave  to   pay 

Debts. 

[R.  L.  c.  137,  §  13.] 

To  the  BonoraUe  the  Judge  of  the  Probate  Coiirt  in  and  for  the 
County  of 
Respectfully  represents  ,  of  ,  that     he     is       special 

administrator     of   the  estate    of  ,  late   of  ,  in   said 

County  of 

That  the  value  of  the  personal  estate  in  the  hands  of 

the  petitioner  is  $ 

That   the  debts  due  from  the  deceased,  as  nearly  as 

they  can  now  be  ascertained,  amount  to  $ 

That  it  is  expedient  that  he  should  pay  from  the  per- 
sonal estate  in  his  hands  the  debts  shown  by  the 
list  herewith  filed,  amounting  to  $ 


PROBATE    FORMS.  703 

Wherefore    he     pray    that    he     may  be   authorized   to   pay 
from  said  personal  estate  the  debts  shown  by  said  list. 
Dated  tliis  day  of  ,  A.  d. 

Citation  by  delivering,  or  mailing  postpaid,  a  copy  of  citation  to  all  persons 
interested  fourteen  days  at  least  before  return  day,  and  by  publishing  once  a 
week  for  three  successive  weeks,  the  last  publication  to  be  one  day  at  least 
before  return  day. 


Petition  for  Perpetual  Care  of  Burial  Lot. 

[  R.L.  c.  150,  §  13,] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Kespectfully  represents  ,  of  ,  in  the  County  of  , 

that      he    is   the  administrat  —  execut         of    the  will  — 

estate  of  ,  late  of  ,  in  said  County  of  ,  de- 

ceased, that  the  body  of  the  said  is  buried  in 

Wherefore  your  petitioner  pray  that  the  Court  determine 
the  amount  of  money  which  he  may  pay  for  the  perpetual  care 
of  the  lot   in  which  the  body  of  said  is  buried,   and  to 

whom  the  same  shall  be  paid. 

Dated  this  day  of  A.  d. 

The  undersigned,  being  all  the  persons  interested,  hereby 
waive  notice  hereof. 

Citation  by  delivering  copy  of  citation  to  all  persons  interested  fourteen 
days  at  least  before  return  day,  or  by  publishing  once  a  week  for  three  suc- 
cessive weeks,  the  last  publication  to  be  one  day  at  least  before  return  day, 
and  by  mailing  postpaid  a  copy  of  citation  to  all  persons  interested  seven  days 
at  least  before  return  day. 


704  APPENDIX. 

Petition  for  Sale  of  Real  Estate  Subject  to 
Contingent  Remainder. 

[R.  L.  c.  127,  §§  28-3L] 

[A  next  friend  must  be  appointed  to  represent  minors  and  persons  not  ascertained 
or  not  in  being.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  ,  of  ,  in  said  County,  that 

,  of  ,   in  said  County   of  ,  by  his  last  will, 

proved   in   said   Court   on   the  day  of  ,  A.  D.  19     , 

devised  certain  real  estate  in  the  following  words: 

The  said  real  estate  is  situated  in  ,  in  said  County  of 

,  and  described  as  follows : 

And  the  petitioner  having  an  estate  in  possession  in  said  real 
estate  represents  that  it  is  necessary  expedient  to  sell  said  real 
estate  for  the  following  reasons : 

And  represents   that  the  following  named   persons,    including 
h     sel     ,  are  the  only  persons  who  or  whose  issue  are  or  may 
become  interested: 


Persons. 


Residence. 


Nature  and  Fractional  Amount 
of  Interest. 


Wherefore  the  petitioner  prays  that  ,  of  ,  in  the 

County  of  ,    or   some  other  suitable  person  may   be   ap- 

pointed a  trustee  to  sell  and  convey  said  real  estate  at  private 
sale  for  the  sum  of  dollars,  or  at  public  auction,  and  to 

hold  and  apply  the  proceeds  of  such  sale  according  to  the  require- 
ments of  law  in  such  case  made  and  provided. 

Citation  by  publishing  once  a  week  for  three  succe.ssive  weeks,  tlie  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  postpaid 
or  delivering  copy  of  citation  to  all  known  persons  who  or  whose  issue  not 
uow  in  being  are  or  may  become  interested,  seven  days  at  least  before  return 
day. 


PROBATE   FORMS.  705 


Petition  for  Sale  of  Estate  Subject  to  Vested 
Remainder. 

[R.  L.  c.  127,  §  29.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  ,  of  ,  in  said  County,  that 

certain  real  estate,  situated  in  ,  in  said  County,  described 

as  follows : 

is  subject  to  a  vested  remainder  or  reversion  created  under  the 
will  of  ,  of  ,  in  said  County. 

That  the  following  are  the  only  persons  interested  (including 
the  petitioner)  : 


Persona. 


Residence. 


Nature  and  Fractional  Amount 
of  Interest. 


That  it  is  necessary  and  expedient  to  sell  said  real  estate  for 
the  following  reasons  ; 

Wherefore  the  petitioner  prays  that  ,  of  ,  in  the 

County  of  ,  or  some  other  suitable  person,  may  be  appointed 

a  trustee  to  sell  and  convey  said  real  estate  at  private  sale  for 
the  sum  of  dollars,  or  at  public  auction,  and  to  hold  and 

apply  the  proceeds  of  such  sale  according  to  the  requirements  of 
law  in  such  case  made  and  provided. 

Citation  by  piiblishing  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  postpaid 
or  delivering  copy  of  citation  to- all  known  persons  interested,  seven  days  at 
least  before  return  day. 


45 


706  APPENDIX. 

Trustee's  Bond  for  Sale  of  Real  Estate  —  With  Sure- 
ties —  Vested  or  Contingent  Remainder. 

Know  all  Men  by  these  Presents, 
That  we  ,  of  ,  in  the  County  of  ,  as  principal    , 

and  ,   of  ,    in  the   County  of  ,   and  ,  of 

,  in  the  County  of  ,  as  sureties,  and  all  within  the 

Commonwealth  of  Massachusetts,  are  holden  and  stand  firmly 
bound  and  obliged  unto  ,  Esquire,  Judge  of  the  Probate 

Court  in  and  for  the  County  of  ,  in  the  full  and  just  sum 

of  dollars,  to  be  paid  to  said  Judge  and  his  successors  in 

said  office;  to  the  true  payment  whereof  we  bind  ourselves  and 
each  of  us,  our  and  each  of  our  heirs,  executors  and  administra- 
tors, jointly  and  severally  by  these  presents.  Sealed  with  our 
seals,  and  dated  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bouuden  trustee  appointed  by  decree  of  this  Court 

dated  to  sell  certain  real  estate  and  hold  the  proceeds 

thereof  for  the  benefit  of  and  others,  shall  :  — 

First,  manage  and  dispose  of  all  such  estate,  and  faithfully 
discharge  h         trust  in  relation  thereto,  according  to  law; 

Second,  render  upon  oath,  at  least  once  a  year,  until  h 
trust  is  fulfilled,  unless  h         is  excused  therefrom  in  any  year 
by  said  Court,  a  true   account  of  the  property  in  h         hands, 
and  of  the  management  and  disposition  thereof,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order ; 

TJiird,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  and  pay  over  and  deliver  all  the  estate  remaining  in 
h  hands,  or  due  from  h  on  such  settlement,  to  the  person 
or  persons  entitled  thereto  ; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

,  ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 


PROBATE   FORMS.  707 

I,  ,  the  within-named  trustee,  declare  that,  to  the  best 

of  my  knowledge  and   belief,    the  value  of  the  within-named 
estate  does  not  exceed  ^ 

[sign] 


Sale  of  Estate  subject  to  Vested  or  Coxtingent  Re- 
mainder—  Appointment  of  Next  Friend  and  Guar- 
dian FOR  THE  Case. 

COMMONWEALTH    OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

At  a  Probate  Court  holden  at  ,  in  said  County,  on  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 
In  the  matter  of  the  petition  of  ,  that  or  some 

other  suitable  person  be  appointed  a  trustee  to  sell  and 
convey  certain  real  estate  subject  to  a  contingent  —  vested  re- 
mainder or  reversion  created  under  the  will  of  ,  late  of 
,  in  the  County  of  ,  for  the  benefit  of  and 
others,  and  to  hold  and  apply  the  proceeds  of  such  sale  as 
required  by  law. 

It  appearing  to  said  Court  that  there  is  need  therefor,  it  doth 
appoint  ,  of  ,in  the  County  of  ,  to  appear  and 

act  therein  as  the  next  friend  of  all  persons  not  ascertained,  or 
not  in  being,  who  are  or  may  become  interested  in  said  estate  ; 
and  it  also  appearing  that 

minor         and  interested  in  said  case,  and  ha         no  legal  guar- 
dian, it  doth  appoint  ,  of  ,  in  said  County  of  , 
to  be  guardian  for  the  case,  to  appear  and  act  for  said  minor 
in  the  above-mentioned  matter. 

Judge  of  Probate  Court. 

I  hereby  accept  the  above  appointment  and 


708  APPENDIX. 


Petition  for  Specific  Performance. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  of  ,  in  said  County  , 

that  ,  late  of  ,  in  said  County,  deceased,  dur- 

ing his  lifetime,  to  wit:  on  the  day  of  ,  a.d. 

1         ,   entered  into  an  agreement  in  writing  with  your 

petitioner,  a  copy  of  which  agreement  is  hereto  annexed: 

whereby  said  agreed   with   your  petitioner,  to  convey  to 

him  upon  the  terms  and  conditions  set  forth  in  said  agree- 
ment ,  certain  real  estate  situated  in  ,  in  said  County, 
and  fully  described  in  said  agreement  ;  that  said 
died  without  making  such  conveyance;  and  that  your 
petitioner  is  ready  to  perform  all  the  conditions  of  said  agree- 
ment             on  his  part. 

Wherefore  your  petitioner  prays  that  a  specific  performance  of 
said  agreement  may  be  decreed,  and  that  administrat 

of  the  estate  of  said  ,  may  be  ordered  to  convey  said 

real  estate  to  him  agreeably  to  the  terms  thereof. 

Dated  this  day  of  a.d.  1 

The  undersigned,  being  all  the  parties  interested  in  the  fore- 
going petition,  desire  the  same  may  be  granted  without  further 
notice. 

Citation  by  delivering  copy  of  citation  fourteen  days  at  least  before  return 
day,  or  if  not  found  within  the  Commonwealth,  by  leaving  copy  at  usual 
place  of  abode,  or  by  mailing  copy  to  last  post-office  address  fourteen  days  at 
least  before  return  day  ;  and,  unless  respondent  has  actual  notice,  by  pub- 
lishing once  a  week  for  three  successive  weeks,  the  last  publication  to  be 
seven  days  at  least  before  return  day. 


PROBATE  FOKMS.  709 


Petition  by  Special  Administrator  for  Leave  to 
Carry  on  Business. 

[R.  L.  c.  137,  §  11.] 
[Notice  upon  this  petition  shall  be  such  as  the  Court  may  order.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully   represents  ,    of  ,    special   adminis- 

trator of  the  estate  of  ,  late  of  ,  in  the  County  of 

,  deceased. 
That  the  said  deceased  was  at  the  time  of  his  death  engaged 
in  the  business  of 

That  the  interest  of  said  business  and  of  said  estate  require  that 
said  business  should  be  continued. 

Wherefore  your  petitioner  pray  that  he  may  be  author- 
ized to  continue  business  for  the  benefit  of  said  estate  under  the 
direction  of  the  Court. 


Petition  for  Probate  of  Will  — Presumption  of  Death. 

[Superseded  by  R.  L.  c.  144,  relating  to  settlement  of  estates  of  absentees.    See  page  726.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents 

of  ,  in  the  County  of  ,  that  ,  whose  last  known 

residence  in  this  Commonwealth  was  in  ,  in  said  County 

of  ,  disappeared  on  the  day  of  ,   in  the  year 

of    our  Lord    one    thousand    nine    hundred  and  ,    since 

which  time  he  has  been  absent  from  said  ,  and  his  where- 

abouts are  unknown  to  his  family,  kindred,  business  associates 


710  APPENDIX. 

and  intimate  friends,  and  tliat  said  absentee  was  last  known  to 
have  been  in  ,  in  the  County  of  ,  and  State  of  , 

and  the  petitioner  believes  that  he  is  dead,  testate,  possessed  of 
goods  and  estate  remaining  to  be  administered,  leaving  as 

widow  —  husband  —  h  only  heirs-at-law  and  next  of  kin, 

the  persons   whose   names,    residences    and    relationship  to  the 
absentee  are  as  follows,  viz. : 

Name.  Residence.  Relationship. 

That  said  absentee  left  a  will  —  and  codicil     —  herewith 

presented,  wherein  your  petitioner  named  execut 

Wherefore  your  petitioner  pray  that  said  will  —  and  codi- 
cil —  may  be  proved  and  allowed  and  letters  testamentary 
issued  to  h  ,  and  certifies  that  the  statements  herein  contained 
are  true  to  the  best  of     h     knowledge  and  belief. 

Dated  this  day  of  ,  a.d.  19 

,  ss.     Subscribed  and  sworn  to  this  day  of  , 

A.D.  19         . 

Before  me,  Justice  of  the  Peace, 

The  undersigned,  being  interested,  hereby  assent  to  the  fore- 
going petition. 

Citation  by  publishing  once  a  week,  for  four  successive  weeks,  the  last  pub- 
lication to  be  one  day  at  least  before  return  day,  by  posting  copy  of  citation 
not  less  than  thirty  daj's  before  return  day  in  at  least  two  conspicuous  places, 
and  by  mailing  postpaid  or  delivering  copy  of  citation  to  all  known  persons 
interested,  seven  days  at  least  before  return  day. 


Executor's  Bond  —  Presumption  of  Death. 

[Superseded  by  R.  L.  c.  144.    See  p.  730.] 

Know  all  Men  by  these  Presents. 
That  we,  ,  of  ,  in  the  County  of  ,  as  prin- 

cipal    ,  and  ,   of  ,   in  the  County  of  ,  and 

,  of  ,  in  the  County  of  ,  as  sureties,  and  all 


PROBATE    FORMS.  711 

within  the  Commonwealth  of  Massachusetts,  are  holden  and 
stand  firmly  bound  and  obliged  unto  ,  Esquire,  Judge  of 

the  Probate  Court  in  and  for  the  County  of  ,  in  the  full 

and  just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his 

successors  in  said  office;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors  and 
administrators,  jointly  and  severally  by  these  presents.  Sealed 
with  our  seals,  and  dated  the  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 

TiiK  coNDiTiox  OF  THIS  OBLIGATION  IS  SUCH;  that  if  the  abovc- 
boundeu 

execut      of  the  last  will  and  testament  of  ,  late  of  , 

in  said  County  of  ,  deceased,  testate,  shall, 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  execut  ; 

'  Second,  administer  according  to  law  and  to  the  will  of  said 
deceased  all  the  personal  estate  of  said  deceased  which  may  come 
to  the  possession  of  said  execut  ,  or  of  any  person  for  h  , 
and  also  the  proceeds  of  any  of  the  real  estate  of  said  deceased 
that  may  be  sold,  mortgaged,  leased  or  rented  by  said  execut      ; 

Third,  render  upon  oath,  a  true  account  of  h  administra- 
tion at  least  once  a  year,  until  h  trust  is  fulfilled,  unless  he 
is  excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order; 

Fourth,  obey  all  orders  and  decrees  that  may  be  made  by  said 
Court. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

,  ss.  A.D.  19       .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-naraed  execut  ,  declare  that,  to  the 


712  APPENDIX. 

best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 
within-named  deceased  do  not  exceed  in  value  the  following- 
mentioned  sums,  viz. : 

Keal  Estate,  $ 

Personal  Estate,  $ 
[sign] 


Executor's  Letter  —  Presumption  of  Death. 

[Superseded  by  R.  L.  c.  144,  relating  to  aettlement  of  estates  of  absentees.    See  p.  730.] 

COMMONWEALTH  OF  MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  of  ,  in  the  Comity  of  ,  and  Common- 

wealth aforesaid. 

You  are  appointed  execut         of  the  last  will  and  testament  of 
,  late  of  ,  in  said  County  of  ,  deceased,  test- 

ate, which  will  was  proved  and  allowed  on  the  day  of 

A.D.  19       ,  by  said  Court,  and  is  now  of  record  in  this  Court; 

And  you  are  required  to  make  and  return  into  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inventory 
of  all  the  real  and  personal  estate  of  said  deceased  which  at  the 
time  of  the  making  of  such  inventory  shall  have  come  to  your 
possession  or  knowledge; 

To  administer,  according  to  law  and  to  the  will  of  said  deceased, 
all  the  personal  estate  of  said  deceased  which  may  come  to  your 
possession,  or  that  of  any  person  for  you,  and  also  the  proceeds 
of  any  of  the  real  estate  of  said  deceased  that  may  be  sold,  mort- 
gaged, leased,  or  rented  by  you ; 

To  render,  upon  oath,  a  true  account  of  your  administration,  at 
least  once  a  year,  until  your  trust  is  fulfilled,  unless  excused 
therefrom,  in  any  year,  by  said  Court ; 

To  obey  all  orders  and  decrees  that  may  be  made  by  said 
Court; 

And  also,  within  three  months,  to  cause  notice  of  your  appoint- 


PROBATE   FORMS.  713 

ment  to  be  posted  in  two  or  more  public  places  in  the  city  or  town 
in  which  said  deceased  last  dwelt  in  this  Commonwealth,  or  cause 
the  same  to  be  published  once  in  each  week  for  three  successive 
weeks  in  the 

a  newspaper  published  in  ,  and  return  your  affidavit  of 

having  given  such  notice,  with  a  copy  thereof,  to  the  Probate 
Court. 

Witness,  ,  Esquire,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Megister. 


Petition  for  Probate  of  Will  —  Presumption  of  Death 
—  Letters  of  Administration  with  the  Will  an- 
nexed. 

[Superseded  by  R.  L.  c.  144,  relating  to  settlement  of  estates  of  absentees.    See  p.  726.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  ,   of  ,   in  the  County  of 

,  that  ,  whose  last  known  residence  in  this  Com- 

monwealth was  in  ,  in  said  County  of  ,  disappeared 

on  the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and  ,  since  which   time   he   has  been 

absent  from  said  ,  and  his  whereabouts  are  unknown  to  his 

family,  kindred,  business  associates  and  intimate  friends,  and 
that  said  absentee  was  last  known  to  have  been  in  ,  in  the 

County  of  ,  and  State  of  ,  and  the  petitioner  believes 

that  he  is  dead,  testate,  possessed  of  goods  and  estate  remaining 
to  be  administered,  leaving  as  widow  —  husband  —  h  only 
heirs-at-law  and  next  of  kin,  the  persons  whose  names,  residences, 
and  relationship  to  the  deceased  are  as  follows,  viz. : 

Name.  Residence.  Relationship. 


714  APPENDIX. 

That  said  deceased  ]eft  a  will — and  codicil      — herewith 

presented,  wherein  w  named  execut  ,  and  has 

That  your  petitioner  is  of  said  absentee  and  interested  in 

liis  estate. 

Wherefore  your  petitioner  pray  that  said  will  —  and  codi- 
cil —  may  be  proved  and  allowed,  and  letters  of  administration 
with  the  will  annexed,  issued  to  h  ,  or  some  other  suitable 
person,  and  certifies  that  the  statements  herein  contained  are 
true  to  the  best  of  h     knowledge  and  belief. 

Dated  this  day  of  a.d.  19 

,  ss.      Subscribed  and  sworn  to  this  day  of 

A.D.  19 

Before  me,  Justice  of  the  Peace. 

The  undersigned  being  interested  hereby  assent  to  the  fore- 
going petition.  ., 

Citation  by  publishing  once  a  week  for  four  successive  weeks,  the  last  pub- 
lication to  be  one  day  at  least  before  return  day,  by  posting  a  copy  of  citation 
not  less  than  thirty  days  before  return  day,  in  at  least  two  conspicuous  |)laces, 
and  by  mailing  postpaid,  or  delivering  copy  of  citation  to  all  known  per- 
sons interested,  seven  days  at  least  before  return  day. 


Administrator's  Bond  —  Presumption  of  Death  —  Will 

ANNEXED. 
[Superseded  by  R.  L.  c.  144.     See  p.  730.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,  as  principal 

and  ,  of  ,  in  the  County  of  ,  and 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within  the 

Commonwealth  of  Massachusetts,  are   liolden  and   stand  firmly 
bound  and  obliged  unto  ,   Esquire,  Judge  of  the  Probate 

Court  in  and  for  the  County  of  ,  in  the  full  and  just  sum 


PROBATE   FORMS.  715 

of  dollars,  to  be  paid  to  said  Judge  and  his  successors  in 

said  office;  to  the  true  payment  whereof  we  bind  ourselves  and 
each  of  us,  our  and  each  of  our  heirs,  executors,  and  administra- 
tors, jointly  and  severally  by  these  presents.  Sealed  with  our 
seals,  and  dated  the  day  of  ,  in  the  year  of  our  Lord 

one  thousand  nine  liundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  administrat         with  the  will    annexed, 

of  the  estate  of  ,  late  of  ,  in   said  County  of 

,  deceased,  testate,  shall. 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  shall  have  come  to  the  possession  or 
knowledge  of  said  administrat  ; 

iSeco7id,  administer  according  to  law  and  to  the  will  of  said 
deceased  all  the  personal  estate  of  said  deceased  which  may 
come  to  the  possession  of  said  administrat  or  of  any  person 
for  h  ,  and  also  the  {proceeds  of  any  of  the  real  estate  of  said 
deceased  that  may  be  sold,  mortgaged,  leased  or  rented  by  said 
administrat  ; 

Third,  render  upon  oath,  a  true  account  of  h  administra- 
tion at  least  once  a  year,  until  h  trust  is  fulfilled,  unless  he 
is  excused  therefrom  in  any  year  by  said  Court,  and  also  render 
such  account  at  such  other  times  as  said  Court  may  order  ; 

Fourth,  obey  all  orders  and  decrees  that  may  be  made  by  said 
Court. 

Tlien  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


,  ss.  A.  D.  19      .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  administrat         ,  declare  that,  to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects  of  the 


716  APPENDIX. 

within-named  deceased  do   not  exceed  in  value  the  following 
mentioned  sums,  viz.  : 

Eeal  Estate,  $ 

Personal  Estate,  $  . 

[sign] 


Letter   of  Administkation   with  Will   annexed  —  Pre- 
sumption OF  Death. 

[Superseded  by  R.  L.  c.  144,  relating  to  settlement  of  Estates  of  absentees.] 

COMMONWEALTH   OF    MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,  of  ,  in  the  Co  lint  ij  of  ,  and  Commonwealth 

aforesaid. 

You    are    appointed    administrat  with     the    will    an- 

nexed of  the  estate  of  ,  late  of  ,  in  the  County  of 

,  deceased,  testate,  which  will  was  proved  and  allowed  on 
the  day  of  ,  A.  d.  19     ,  by  said  Court,  and  is  now 

of  record  in  this  Court: 

And  you  are  required  to  make  and  return  to  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tor}' of  all  the  real  and  personal  estate  of  said  deceased,  which  at 
the  time  of  the  making  of  such  inventory  shall  have  come  to 
your  possession  or  knowledge  ; 

To  administer  according  to  law.  and  to  the  will  of  said  de- 
ceased, all  the  personal  estate  of  said  deceased  which  may  come 
to  your  possession,  or  that  of  any  person  for  you,  and  also  the 
proceeds  of  any  of  the  real  estate  of  said  deceased  that  may  be 
sold,  mortgaged,  leased,  or  rented  by  you; 

To  render,  upon  oath,  a  true  account  of  your  administration, 
at  least  once  a  year,  until  your  trust  is  fulfilled,  unless  excused 
therefrom,  in  any  year,  by  said  Court ; 

To  obey  all  orders  and  decrees  that  may  be  made  by  said 
Court ; 


PROBATE   FORMS.  717 

And  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  posted  in  two  or  more  public  places  in  the  city 
or  town  in  which  said  deceased  last  dwelt  in  this  Common- 
wealth, or  cause  the  same  to  be  published  once  in  each  week  for 
three  successive  weeks  in  the  ,  a  newspaper  published  in 

,  and  return  your  affidavit  of  having  given  such  notice, 
with  a  copy  thereof,  to  the  Probate  Court. 

Witness,  ,  Esquire,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Register. 

Petition  for  Administration  —  Presumption  of  Death. 

[Superseded  by  R.  L.  c.  144,  relating  to  settlement  of  estates  of  absentees.    See  p.  726.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  ,  of  ,   in   the  County  of 

,  that  ,  whose  last  known  residence  in  this  Com- 

monwealth was  in  ,  in  said  County  of  ,  disappeared 

on  the  day  of  ,  in  the  year  of  our  Lord  one  thou- 

sand nine  hundred  and  ,  since  which  time  he  has 

been  absent  from  said  ,  and  his  whereabouts  are  unknown 

to  his  family,  kindred,  business  associates,  and  intimate  friends, 
and  that  said  absentee  was  last  known  to  have  been  in  ,  in 

the  County  of  ,  and  State  of  ,  and  your  petitioner 

believes  that  he  is  dead,  intestate,  possessed  of  goods  and  estate 
remaining  to  be  administered,  leaving,  as  the  only  per- 
sons interested  in  said  estate,  a  widow  —  husband,  and 
h  only  heirs-at-law  and  next  of  kin,  the  persons  whose 
names,  residences,  and  relationship  to  the  absentee  are  as  fol- 
lows, viz.  : 

Name.  Kesidence.  Relationship. 

that  your  petitioner     is  a  of  said  absentee,  and  interested 

in  his  estate. 


718  APPENDIX. 

Wherefore  your  j)etitioner  prays  that  he  ,  or  some  other 
suitable  person,  he  appointed  adniinistrat  of  tlie  estate  of  said 
,  and  certifies  that  the  statements  herein  contained  are 
true  to  tlie  best  of     h     knowledge  and  belief. 

Dated  this  day  of  ,  A.  D.  19     . 

,  ss.  Subscribed  and  sworn  to  this  day  of 

,  A.  D.  19      . 


Before  me, 


Justice  of  the  Peace. 


The  xindersigned,  interested  in  said  estate,  hereby  assent  to 
the  foregoing  petition. 

Citation  bj'  publication  once  a  week  for  four  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  by  posting  a  copy  of 
citation  not  less  than  thirty  days  before  return  day  in  at  least  two  conspicuous 
places,  and  by  mailing  postpaid  or  delivering  copy  of  citation  to  all  known 
persons  interested  seven  days  at  least  before  return  day. 


Administrator's  Bond  —  Presumption  of  Death. 

[Superseded  by  R.  L.  c.  144.     See  p.  730.] 

Know  all  Men  by  these  Presents, 
That    we,  ,    of  ,   in    the    County    of  ,    as 

principal  ,  and  ,  of  ,  in  the  County  of  ,  and 

,  of  ,  in  the  County  of  ,  as  sureties,  and  all 

within  the  Commonwealth  of  Massachusetts,  are  holden  and 
stand  firmly  bound  and  obliged  unto  ,  Esquire,  Judge  of 

the  Probate  Court  in  and  for  the  County  of  ,  in  the  full 

and  just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his 

successors  in  said  office ;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors 
and  administrators,  jointly  and  severally  by  these  presents. 
Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,    that   if   the 
above-bounden  ,  administrat      of  the  estate  of  ,  late 

of  ,  in  said  County  of  ,  deceased,  intestate,  shall, 


PROBATE    FORMS.  719 

First,  make  and  return  to  said  Probate  Court,  within  three 
months  after  h  appointment,  a  true  inventory  of  all  the  real 
and  personal  estate  of  said  deceased  which  at  the  time  of  the 
making  of  such  inventory  sliall  have  come  to  the  possession  or 
knowledge  of  said  administrat      ; 

Second,  administer  according  to  law  all  the  personal  estate  of 
said  deceased  which  may  come  to  the  possession  of  said  admin- 
istrat ,  or  of  any  person  for  h  ,  and  also  the  proceeds  of  any 
of  the  real  estate  of  said  deceased  that  may  be  sold,  mortgaged, 
leased  or  rented  by  said  administrat      ; 

Third,  render  upon  oath,  a  true  account  of  h      administration 

at  least  once  a  year,  until    h      trust  is  fulfilled,  unless    he    is 

excused  therefrom  in  any  year  by  said  Court,  and  also 

render  such  account  at   such   other  times   as  said  Court  may 

order; 

Fourth,  pay  to  such  persons  as  said  Court  may  direct,  any 
balance  remaining  in    h      hands,  upon  the  settlement  of    h 
accounts ; 

Fifth,  deliver  h  letters  of  administration  into  said  Court 
in  case  any  will  of  said  deceased  is  hereafter  duly  proved  and 
allowed;  and 

Sixth,  obey  all  orders  and  decrees  that  may  be  made  by  said 
Court. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


,  ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  ,  the  within-named  administrat       ,   declai-e  that,   to 

the  best  of  my  knowledge  and  belief,  the  estate  and  effects 

of  the  within-named  deceased  do  not  exceed  in  value  the  follow- 
ing-mentioned sums,  viz.  : 

Real  Estate,         I 
Personal  Estate,  $  . 

[sign] 


720  APPENDIX. 

Administrator's  Letter  —  Presumption  of  Death. 

[Superseded  by  R.  L.  c.  144.    See  p.  729.] 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ,   of  ,  in  the  County  of  ,  and  Common- 

wealth aforesaid. 

You  are  appointed  admin istrat        of  the  estate  of  ,  late 

of  ,  in  said  County  of  ,  deceased,  intestate. 

And  you  are  required  to  make  and  return  to  said  Probate 
Court,  witliin  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  the  real  and  personal  estate  of  said  deceased  which  at 
the  time  of  the  making  of  such  inventory  shall  have  come  to 
your  possession  or  knowledge; 

To  administer  according  to  law  all  the  personal  estate  of  said 
deceased  which  may  come  to  your  possession,  or  that  of  any 
person  for  you,  and  also  the  proceeds  of  any  of  the  real  estate  of 
said  deceased  that  may  he  sold,  mortgaged,  leased,  or  rented  by 
you; 

To  render,  upon  oath,  a  true  account  of  your  administration, 
at  least  once  a  3^ear,  until  your  trust  is  fulfilled,  unless  excused 
therefrom,  in  any  year,  by  said  Court; 

To  pay  any  balance  remaining  in  j^our  hands  upon  the  settle- 
ment of  your  accounts,  to  such  persons  as  said  Court  shall  direct; 
to  obey  all  orders  and  decrees  that  may  be  made  by  said  Court; 

To  deliver  these  letters  of  administration  into  said  Court,  in 
case  anv  will  of  said  deceased  shall  be  hereafter  duly  proved  and 
allowed ; 

And,  also,  within  three  months,  to  cause  notice  of  your  ap- 
pointment to  be  posted  in  two  or  more  public  places  in  the  city 
or  town  in  which  said  deceased  last  dwelt  in  this  Commonwealth, 
or  cause  the  same  to  be  published  once  in  each  week  for  three 
successive  weeks  in  the  ,  a  newspaper  published  in  , 

and  return  your  affidavit  of  having  given  such  notice,  with  a 
copy  thereof,  to  the  Probate  Court. 


PROBATE   FORMS.  721 

Witness,  ,  Esquire,  Judge  of  said  Court,  at  ,  this 

day  of  ,  ill  the  year  of  our  Lord  one  thousand  nine 


hundred  and 


Register. 


Petition  for  Distribution  —  Presumption  of  Death  — 
Intestate  Estate. 

[Superseded  by  R.  L.  c.  144,  §  11.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Kespectfully  represents  ,  of  ,  in  said  County,  ad- 

ministrat         of    tlie    estate    of  ,    late    of  ,    in    said 

County  ,    deceased,    intestate  ,    that    said   deceased 

has  been  missing  and  unheard  from,  and  his  whereabouts  have 
been  unknown  to  his  family,  kindred,  business  associates  and 
friends  for  fourteen  consecutive  years  prior  to  the  filing  of  this 
petition,  that  he  was  last  known  to  have  been  alive  on  the 
day   of  ,    in   the  year  one   thousand    nine    hundred   and 

,  that  there  is  a  balance  of  his  estate  in  the  hands  of  h 
administat       which  remains  to  be  distributed  among  h      widow 
and  next  of  kin,  whose  names,  places  of  residence,  and  relation- 
ship to  the  deceased  are  supposed,  or  claimed,  to  be  as  follows: 
Name.  Residence.  Relationship.  Share. 

Wherefore  your  petitioner  pray  that  distribution  of  such 
balance  may  be  decreed  by  the  Court  among  such  persons  as 
may  be  proved  to  be  entitled  thereto,  according  to  law. 

Dated  this  day  of  ,  A.  d.  19     . 

,  ss.  ,  A.  D.  19     .     Then  personally  appeared  , 

and  made  oath  to  the  truth  of  the  above  representation,  accord- 
ing to  the  best  of    h      knowledge  and  belief. 

Before  me, 

Justice  of  the  Peace. 

Citation  by  publishing  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  postpaid 
co])y  of  citation  to  all  known  persons  interested,  fourteen  days  at  least  before 
return  day. 

46 


^722  APPENDIX. 

Bond  of  Heir  —  Presumption  of  Death. 

[Superseded  by  R.  L.  c.  144.] 

Know  all  Men  by  these  Presents, 

That  we,  of  ,  in  the  County  of  ,  as  princi- 

pal    ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within  the 

Commonwealth  of  Massachusetts,  are  holden  and  stand  firmly 
bound   and   obliged    unto  ,   Esquire,    Judge  of  the    Pro- 

bate Court  in  and  for  the  County  of  ,  in  the  full  and  just 

sum  of  dollars,  to  be  paid  to  said  Judge  and  his  successors 

in  said  office;  to  the  true  payment  whereof  we  bind  ourselves 
and  each  of  us,  our  and  each  of  our  heirs,  executors  and  admin- 
istrators, jointly  and  severally  by  these  presents.  Sealed  with 
our  seals,  and  dated  the  day  of  ,  in  tlie  year  of  our 

Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-named  principal,  who  is  heir  —  devisee  —  legatee  —  dis- 
tributee—  of  a  certain  estate  —  share  —  legacy  —  received  by 
him  from  the  estate  of  ,  formerl}^  of  ,  in  said  County 

of  ,  whose  estate  is   in  course  of  administration  in  this 

Court,  upon  presumption  of  his   death,  upon   the  day  of  ■ 

,  189    ,  as   appears  by  decree  of  this  Court,  shall 

restore  any  share,  estate,  or  legacy  received  or  acquired  by  him 
from  the  estate  of  said  ,  or  its  equivalent  in  money,  with- 

out interest,  to  said  if  he  shall  return  and  claim  it  within 

eight  years  from  the  date  hereof. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 


SS.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 


probate  forms.  723 

Petition  for  Trusteeship  under  Written  Instrument. 

[The  original  iustrument  should  be  filed.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
Count)/  of 
Eespectfully  represents  ,  of  ,  in  the  County  of  , 

that  ,  late  of  ,  in  the  County  of  ,  was  trustee 

under    a   certain  instrument   in  writing,   dated  ,  and   re- 

corded in  the  Registry  of  Deeds  for  the  County  of  ,  book 

,  page  ,  wherein  , 

gave  certain  estate  in  trust  to  for  the  benefit  of 

which   said  instrument  is  filed   herewith,  and  said  has 

before  the  objects  of  said  trust  are  accomplished,  and  no 
adequate  provision  is  made  therein  for  supplying  the  vacancy; 
that  some  of  the  parties  interested  in  said  trust  request  the  ap- 
pointment of  your  petitioner  in  place  of  said 

Wherefore     he     pray     that     he     may  be  appointed  trustee 
as  aforesaid,  according  to  the  provisions  of  the  law  in  such  cases 
made  and  provided. 

Dated  this  day  of     a.  d.  19     . 

The  undersigned,  being  all  persons  interested  in  said  trust, 
request  that  the  prayer  of  above  petition  be  granted  without 
further  notice. 

Citation  by  publishing  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


Trustee's  Bond  —  Under  Deed. 

Know  all  Men  by  these  Presents, 
That  we,  ,  of  ,  in  the  County  of  ,  as  principal    , 

and  ,  of  ,  in  the   County  of  ,  and  ,  of 

,  in  the  County  of  ,  as  sureties,  and  all  within  the 


724  APPENDIX. 

Commonwealth  of  Massachusetts,  are  holden  and  stand  firmly 
bound  and  obliged  unto  ,  Esquire,  Judge  of   the  Probate 

Court  in  and  for  the  County  of  ,  in  the  full  and  just  sum 

of  dollars,  to  be  paid  to  said  Judge  and  his  successors  in 

said  office  ;  to  the  true  payment  whereof  we  bind  ourselves  and 
each  of  us,  our  and  each  of  our  heirs,  executors  and  administra- 
tors, jointly  and  severally  by  these  presents.  Sealed  with  our 
seals,   and  dated    the  day   of  ,   in   the   year  of   our 

Lord  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  ,  trustee      under    a  certain  instrument  in 

writing,  dated  ,  A.  d.  18      ,  wherein  gave  to 

certain  estate  in  trust  for  the  benefit  of  ,  shall, 

First,  make  and  return  to  said  Probate  Court,  within  three 
months,  the  Court  having  so  ordered,  a  true  inventory  of  all  the 
real  and  personal  estate  belonging  to  h  as  trustee  ,  which 
at  the  time  of  the  making  of  such  inventory  shall  have  come  to 

h     possession  or  knowledge  ; 

Second,  manage  and  dispose  of  all  such  estate,  and  faithfully 
discharge  h  trust  in  relation  thereto,  according  to  law  and 
the  terms  of  said  instrument ; 

Third,  render  upon  oath,  at  least  once  a  year,  until     h 
trust   is  fulfilled,  unless     he  is     excused  therefrom  in  any 

year  by  said  Court,  a  true  account  of  the  property  in     h 
hands,   and  of  the  management    and    disposition   thereof,  and 
also  to  render  such  account  at  such  other  times  as  said  Court 
may  order  ; 

Fourth,  at  the  expiration  of  h  trust,  settle  h  ac- 
count in  said  Court,  and  pay  over  and  deliver  all  the  estate 
remaining  in  h  hands,  or  due  from  h  on  such  settle- 
ment, to  the  person  or  persons  entitled  thereto  ; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

,  ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court, 


PROBATE    FORMS,  725 

I,  ,  the  witliin-naraed  trustee,  declare  that,  to  the  best 

of  my  knowledge  and  belief,  the  value  of  the  within-named 
trust  estate  does  not  exceed  the  following-mentioned  sums, 
viz. : 

Keal  estate,  $  . 

Personal  Estate,  $  • 

[sign] 


Trustee's  Letter  —  Under  Deed. 

[This  should  be  recorded  wherever  the  trust  instrument  is  recorded.] 

COMMONWEALTH  OF  MASSACHUSETTS. 
J  ss.  Probate  Court. 

To  ,  of  ,   in  tlie   County  of  ,   and  Commo'nr 

wealth  aforesaid, 

Greeting: 

You  are  appointed  trustee    in  place  of  ,  under  a  certain 

instrument  in  writing,  to  wit : 

To  have  and  exercise  the  same  powers,  rights  and  duties  under 
said  instrument  as  if  you  had  been  originally  appointed;  and 
the  trust  estate  to  vest  in  you  in  like  manner  as  it  vested 

in  the  trustee  aforesaid,  in  whose  place  3'ou  are  substituted. 

And  you  are  ordered  to  make  and  return  to  said  Probate 
Court,  within  three  months  from  the  date  hereof,  a  true  inven- 
tory of  all  the  real  and  personal  estate  belonging  to  you  as  trus- 
tee which  at  the  time  of  the  making  of  such  inventory  shall 
have  come  to  your  possession  or  knowledge; 

To  manage  and  dispose  of  all  such  estate,  and  faithfully  dis- 
charge your  trust  in  relation  thereto,  according  to  law  and  the 
terms  of  said  instrument; 

To  render  upon  oath  at  least  once  a  year,  until  your  trust  is 
fulfilled,  unless  excused  therefrom  in  any  year  by  said  Court,  a 
true  account  of  the  property  in  your  hands,  and  of  the  manage- 


726  APPENDIX. 

ment  and  disposition  thereof,  and  also  to  render  sucli  account  at 
such,  other  times  as  said  Court  may  order ;  and 

At  the  expiration  of  your  trust,  to  settle  your  account  in  said 
Court,  and  pay  over  and  deliver  all  the  estate  remaining  in  your 
hands  or  due  from  you  on  such  settlement,  to  the  person  or 
persons  entitled  thereto. 

Witness,  ,  Esquire,  Judge  of  said  Court,  at  ,  this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Register. 

Petition  for  Receivership  of  Absent  Person's  Estate. 

[R.  L.  c.  144.] 
[A  Surety  Company  required  in  all  cases.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 

County  of 

Respectfully   represents  ,  of  ,  in   the    County  of 

,  that  ,  a  resident  of  ,  in  this  Commonwealth, 

and  having  property  therein,  disappeared,  absconded  and  ab- 
sented himself  from  this  Commonwealth  on  the  day  of 
A.  D.  1  ;  that  he  has  left  no  agent  therein,  and  his 
whereabouts  are  unknown ;  knoivn  to  be  out  of  this  Common- 
wealth, to  wit.  at  ;  that  he  has  a  wife  and  minor  children 
dependent  upon  him  wholly  partly  for  support,  and  that  he  has 
disappeared  without  making  sufficient  provision  for  such  sup- 
port ;  that  said  absentee  was  years  of  age,  a  by 
occupation,  and  in  the  County  of  and  Common- 
wealth of  Massachusetts  ,  was  his  last  known  residence 
and  address  ;  that  he  disappeared  on  the  date  above-named  under 
the  following  circumstances,  to  wit : 

and  that  the  names  and  residences  of  the  family  of  the  absentee 
and  of  other  persons  of  whom  imquiry  may  be  made  are  as  fol- 
lows, viz: 

Name.  Residence.  Relationship. 

That  a  schedule  of  the  property  of  said  absentee  within  this 
Commonwealth,  real  and  personal,  and  its  location,  so  far  as 
known,  is  herein  contained,  and  the  same  is  aU  the  property  of 


PROBATE   FORMS. 


727 


said  absentee  known  to  your  petitioner  to  be  in  this  Common- 
wealth ;  that  your  petitioner  is  acting  in  behalf  of  the  wife  and 
child  a  of  said  absentee,  and  would  be  entitled  to  adminis- 

ter upon  his  estate  if  he  were  dead. 

Wherefore  your  petitioner  pray  that  said  property  may  be 
taken  possession  of  by  this  Court ;  that  he  ,  or  some  other 
suitable  person,  be  appointed  receiver  of  the  same,  and  that 
a  warrant  issue  therefor,  and  certif  that  the  statements  herein 
contained  are  true  to  the  best  of  h      knowledge  and  belief. 

Dated  this  day  of  A.  d.  19     . 

,   ss.  Subscribed   and   sworn   to   this  day   of 

A.  D.  19     . 

Before  me, 

Justice  of  the  Peace. 

SCHEDULE  OF  PROPERTY. 

Schedule  of  Property  of  ,  formerly  of  in  said 

County  of  ,  absentee. 


Real  Estate. 


Personal  Estate. 


Location. 


Absentee  —  Order  of  Notice. 
COMMONWEALTH  OF  MASSACHUSETTS. 


,  ss.  Probate  Court. 

To  an  absentee  who  formerly  resided  in  ,  in  the 

County  of  ,  having  property  in  said  County ;  to  all  per- 


728  APPENDIX. 

S071S  claiming  an  iyiterest  in  the  property  hereinafter  named ; 
and  to  oil  tohom  it  may  concern  : 

Whereas,  a  petition  has  been  presented  to  said  Court  to 
appoint  ,   of  in  the  County  of  or  some  other 

suitable  person,  receiver  of  the  folhjvving  described  property  of 
said  absentee,  and  whereas  a  warrant  to  take  possession  thereof 
has  issued  to  an  officer  who  has  taken  and  now  holds  the  same, 
to  wit : 

You  are  hereby  cited  to  appear  at  a  Probate  Court  to  be  held 
at  ,  in  said  County  of  ,  on  the  day  of 

A.  D.  19  ,  at  nine  o'clock  in  the  forenoon,  to  show  cause,  if  any 
you  have,  why  the  same  should  not  be  granted. 

And  the  petitioner  is  hereby  directed  to  give  public  notice 
thereof,  by  publishing  this  notice  once  in  each  week,  for  three 
successive  weeks,  in  the  a  newspaper  published  in  , 

the  last  publication  to  be  seven  days  at  least  before  said  Court; 
and  by  posting  a  copy  of  this  notice,  not  less  than  thirty  days 
before  said  Court,  upon  each  parcel  of  land  named  herein,  and 
in  two  or  more  conspicuous  public  places  in  ,  the  city  — 

town  —  in  wliich  the  absentee  was  last  known  to  have  been,  and 
by  mailing,  postpaid,  at  least  thirty  days  before  said  Court,  a 
copy  of  this  notice  to  said  absentee,  addressed  to  him  at  , 

his  last  known  address. 

Witness,  ,   Esquire,   Judge  of  said  Court,   this 

day  of  in  the  year  one  thousand  nine  hundred  and 

Megister. 

Absentee  —  Return  of  Service  of  Order  of  Notice. 

I  certify  that  I  have  served  the  foregoing  notice  as  therein 
ordered,  by  publishing  the  same  for  three  successive  weeks  in 
the  the  last  publication    in  each  newspaper  being  seven 

days  before  said  Court,  by  posting  a  copy  thereof  upon  each  of 
said  parcels  of  land,  and  in  conspicuous  places  in  the  said 

of  and  by  mailing,  postpaid,  to  the  said  absentee, 

on  the  day  of  ,  19     ,  a  copy  of  tlie  same  addressed 

to  him  at  ,  his  last  known  address. 


PROBATE    FORMS.  729 

,  ss.  A.D,    19     .     Personally   appeared  and 

made  oath  to  the  truth  of  the  above  return  by  h      subscribed. 
Before  me, 

Justice  of  llie  Peace. 

Absentee  —  Warrant  to  Sheriff  to  take  Possession 
OF  Property. 

[R.  L.  c.  144.] 

COMMONWEALTH  OF  MASSACHUSETTS. 
,  ss.  Probate  Court. 

To  the  Sheriffs  of  our  several  Counties^  or  their  Deputies, 

Greeting  : 
You  are  hereby  directed  to  take  possession  forthwith  of  all 
the  following  described  property  and  estate,  real  and  personal, 
of  ,  formerly  of  ,  in  the  County  of  ,  absentee, 

and  hold  the  same  safely,  subject  to  the  order  of  the  Court, 
to  wit : 

And  you  are  also  directed  to  post  a  copy  of  this  warrant  upon 
each  parcel  of  land  named  herein,  and  cause  so  much  hereof  as 
relates  to  land  to  be  recorded  in  the  Registry  of  Deeds  for  the 
County  and  District  in  which  the  land  is  located,  and  to  make 
return  of  this  warrant  forthwith  with  your  doings  thereon,  and 
■with  a  schedule  of  all  property  taken  possession  of  by  virtue 
hereof,  together  with  your  costs  and  expenses  thereon. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and 
caused  the  seal  of  said  Court  to  be  affixed,  at  ,  this 

day  of  in  the  year  one  thousand  nine  hundred  and 

Judge  of  Probate  Court. 

Absentee  —  Decree  on  Petition  for  Appointment 
OF  Receiver. 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss. 
At  a  Probate  Court,  holden  at  ,  in  and  for  said  County 

of  ,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  nine  hundred  and  , 


730  APPENDIX. 

The  petition  of  of  in   the  County  of  , 

praying  that  he  ,  or  some  other  suitable  person,  be  appointed 
receiver  of  certain  property  and  estate  of  ,  absentee,  lying 

ii)  part  in  in  said  County  of  ,  and  described  in 

the  return  of   the  officer,  and  the  warrant  and  return  thereon 
having  been  considered,  after  a  hearing,  it  appearing  that  said 
disappeared  from  this  Commonwealth  on  the  day 

of  in  the   year  1       ,   and   that   his  whereabouts   are   un- 

known, and  the  said  absentee  and  all  other  persons  interested 
having  been  notified  according  to  the  order  of  the  Court,  to 
appear  and  show  cause,  if  any  they  have,  against  the  same,  and 
no  party  objecting  thereto;  and  it  appearing  that  need  for  a 
receiver  exists  ;  it  is  found  by  the  Court  and  ordered  to  be 
recorded  that  the  date  of  the  disappearance  of  said  absentee 
was  the  day  of  in  the  year  1 

And  it  is  decreed  that  said  petitioner  be  appointed 

receiver  of  said  property  and  estate  described  in  said  return, 
first  giving  bond,  according  to  law,  for  the  due  performance  of 
said  trust,  and  that  said  officer  transfer  and  deliver  unto  said 
receiver  forthwith  upon  the  filing  and  approval  of  his  bond, 
all  the  property  and  estate  named  in  the  said  officer's  return. 

Judge  of  Probate  Court. 


Receiver's  Bond. 

[R.  L.  c.  144.] 

Know  all  Men  by  these  Presents, 

That  we,  ,  of  ,  in  the  County  of  ,   as  princi- 

pal ,  and  ,  of  ,  in  the  County  of  ,  and  , 

of  ,  in  the  County  of  ,  as  sureties,  and  all  within 

the  Commonwealth  of  Massachusetts,  are  holden  and  stand 
firmly  bound  and  obliged   unto  ,  Esquire,   Judge  of  the 

Probate  Court  in  and  for  the  County  of  ,  in  the  full  and 

just  sum  of  dollars,  to  be  paid  to  said  Judge  and  his  suc- 

cessors in  said  ofBce ;  to  the  true  payment  whereof  we  bind 
ourselves  and  each  of  us,  our  and  each  of  our  heirs,  executors 
and  administrators,   jointly  and   severally   by   these   presents. 


PROBATE    FORMS.  731 

Sealed  with  our  seals,  and  dated  the  day  of  ,  in  the 

year  of  our  Loid  one  thousand  nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
ahove-bounden  ,  receiver  for  all  the  property  of  , 

lately  resident  in  ,  in  said  County  of  ,  an  absentee 

shall, 

First,  make  and  return  to  said  Probate  Court  forthwith  a  true 
inventory  of  all  the  real  and  personal  estate  of  said  absentee 
that  at  the  time  of  the  making  of  the  same  shall  have  come  to 
the  possession  of  said  receiver ;  and,  at  such  time  as  it  may 
order,  a  true  inventory  of  such  additional  property  as  may  come 
into  h     possession  hereafter; 

Second,  manage  and  dispose  of  all  such  estate  according  to 
law  and  for  the  best  interests  of  said  absentee,  and  also  the 
proceeds  of  an^^  of  the  real  estate  of  said  absentee  that  may  be 
sold  or  mortgaged  by  said  receiver  ,  and  faithfull3^  discharge 
h  trust  in  relation  to  such  estate  and  to  the  support  and 
maintenance  of  his  wife  and  minor  children; 

Third.,  render  upon  oath,  at  least  once  a  year,  until  h 
trust  is  fulfilled,  unless  he  is  excused  therefrom  in  any 
year  by  said  Court,  a  true  account  of  the  property  in  h 
hands,  including  the  proceeds  of  all  real  estate  sold  or  mort- 
gaged by  h  ,  and  of  the  management  and  disposition  thereof, 
and  also  render  such  account  at  such  other  times  as  said  Court 
may  order;  and 

Fourth,  obey  all  orders  and  decrees  made  by  said  Court ; 

Fifth,  at  the  expiration  of    h      trust,  settle    h      account  in 
said  Court,  or  with  said  absentee  or  his  legal  representatives, 
and  pay  over  and  deliver   all   the    estate  remaining  in    h 
hands,   or  due  from    h      on  such  settlement,  to  the  person  or 
persons  lawfully  entitled  thereto. 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Signed,  sealed,  and  delivered 
in  presence  of 

,  ss.  ,  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 


732  APPENDIX. 

Receivek's  Letter. 
COMMONWEALTH   OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  ^  of  ,  in  County  of  ,  and  Commonwealth 

aforesaid. 
You  are  appointed  receiver  for  certain  property  and  estate  of 
,  formerly  a  resident  of  ,  in  said  Commonwealth 

,  an  absentee,  which  property  is  described  in  the  follow- 
ing schedule,  to  wit: 

And  you  have  full  power  and  authority  to  take  possession  of 
the  same,  and  to  have  the  care,  custody,  leasing,  investing  and 
application  of  it  and  its  proceeds  under  the  direction  of  said 
Court;  and  likewise  of  any  additional  property,  of  said  absentee, 
and  its  proceeds,  which  in  future  you  may  be  authorized  and 
directed  to  take  possession  of. 

You  are  required  to  manage  and  dispose  of  all  such  estate 
according  to  law  and  the  orders  of  the  Court  and  for  the  best 
interests  of  said  absentee,  and  faithfully  to  discharge  your  trust 
in  relation  to  such  estate,  and  to  the  support  and  maintenance 
of  the  wife  and  minor  children  of  said  absentee ; 

To  render,  upon  oath,  a  true  account  of  the  property  in 
your  hands,  including  the  proceeds  of  all  real  estate  sold  or 
mortgaged  by  you,  and  of  the  management  and  disposition  of 
all  such  property,  at  least  once  a  year,  until  your  trust  is  ful- 
filled, unless  excused  therefrom  in  any  year  by  said  Court; 

At  the  expiration  of  your  trust  to  settle  your  accounts  in 
said  Court,  or  with  said  absentee  or  his  legal  representative, 
and  to  pay  over  and  deliver  all  the  estate  and  effects  remaining 
in  your  hands,  or  due  from  you  on  such  settlement,  to  the  person 
or  persons  lawfully  entitled  thereto. 

Witness,  ,  Esquire,  Judge  of  said  Court,  at  this 

day  of  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Register. 


PROBATE   FORMS.  733 


Petition  fok  Assignment  of  Keal  Estate  in  Fee  ($5,000) 
—  By  the  Court. 

[Superseded  by  R.  L.  c.  135,  §  16 ;  c.  140,  §  3.] 

[The  names  of  the  guardians  of  minors  interested  must  be  stated.  If  part  of  the  land  of 
the  deceased  lies  in  common  with  others  that  fact  must  be  stated,  and  a  description  of  such 
land,  the  deceased's  share  therein,  and  the  names  of  the  co-tenants  inserted  in  or  annexed  to 
the  petition.] 

To  the  Honorable  the  Judge  of  the  Probate  Couii,  in  and  for  the 
County  of 
Respectfully  represents  ,  of  ,  in  the  County  of 

,  that  ,   late  of  ,   in  said  County  of  , 

deceased,  intestate,  leaving  no  issue  living,  died  seized  of  cer- 
tain real  estate  in  this  Commonwealth,  that  is  h  widow 
—  husband  and  entitled  to  said  estate  in  fee  to  an  amount 
not  exceeding  five  tliousand  dollars  in  value;  that  the  entire 
real  estate  of  the  deceased  consists  of  the  following  described 
parcels,  namely : 

and  your  petitioner  further  says  that  the  whole  of  said  real 
estate  of  the  deceased,  above  described,  does  not  exceed  the 
value  of  five  thousand  dollars,  as  appears  by  the  inventory  filed 
in  this  Court,  being  of  the  value  only  of  dollars,  as  your 

petitioner  is  prepared  to  verify ;  and  that  the  names  and  resi- 
dences of  all  other  persons  now  interested  therein  are  as  follows : 

Wherefore  he  prays  that  the  whole  of  said  estate  of  said 
deceased  may  be  assigned  and  set  out  to  h  in  fee  by  said 
Court,  as  provided  by  law. 

Dated  this  day  of  a.d.  19     . 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  tlie  foregoing  petition : 

Citation  by  delivering  copy  of  citation  to  each  person  interested  who  can  be 
found  within  the  Commonwealth,  fourteen  days  at  least  before  return  day ; 
and  if  any  one  cannot  be  so  found,  by  publishing  once  a  week  for  three  suc- 
cessive weeks,  the  last  publication  to  be  one  day  at  least  before  return  day. 


734  APPENDIX. 

Petition  for  Distribution  among  a  Class  —  Trust  Estate. 

[R.  L.  c.  147,  §  20.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 

County  of 

Respectfully  represents  trustee  under  the  will  of 

,  late  of  ,  in  the  County  of  ,  for  the  benefit 

of  the  persons  named  below,  that  he  holds  as  such  trustee  certain 

estate,  to  wit : 

that  by  the  provisions  of  said  will  the  said  trust  estate  is 

to  be  distributed  in  among  the  heirs  —  the  next  of  kin  of 

in  a  class  of  persons,  namely,   the  of  whose 

names  and  jdaces  of  residence  are  supposed  or  claimed  to  be  as 
follows : 

Name.  Residence.  Relationship.  Share. 

Wherefore  your  petitioner  pray  that  he  may  be  ordered  to 
convert  the  said  trust  estate  into  cash,  and  that  distribution  of 
the  same  may  be  decreed  by  the  Court,  among  such  persons  as 
may  be  proved  to  be  entitled  thereto,  according  to  law. 

Dated  this  day  of  a.d.  19     . 

ss.  A.D.   19     .     Then  personally  appeared 

and  made  oath  to  the  truth  of  the  above  representation,  accord- 
ing to  the  best  of    h       knowledge  and  belief. 

Before  me,  Justice  of  the  Peace. 

Citation  by  publishing  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  l)efore  return  day,  and  by  mailing  postpaid 
or  delivering  copy  of  citation  to  all  known  persons  interested,  fourteen  days 
at  least  before  return  day. 


Petition  for  Distribution  of  Legacy  among  a  Class. 

[R.  L.  c.  141,  §  22.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  executor  of  the  will  of  — 

administrator     with  the  will  annexed  of  the  estate  of 


PKOBATE   FORMS.  735 

late  of  ,  in  said  County  of  ,  deceased,  testate,  that, 

by  the  provision  of  the  will  of  said  deceased,  a  certain  legacy, 
amounting  to  the  sum  of  dollars,  remains  to  be  distributed 

among  the  heirs,  the  next  of  kin,  of  in  a  class  of 

persons,  namely,  the  ,  of  ,  whose  names  and  places 

of  residence  are  supposed,  or  claimed  to  be,  as  follows  : 

Name.  Residence.  Relationship.  Shake. 

Wherefore  your  petitioner  pray  that  distribution  of  such 
legacy  may  be  decreed  by  the  Court,  among  such  persons  as 
may  be  proved  to  be  entitled  thereto,  according  to  law. 

Dated  this  ,  day  of  ,  a.d.  19     . 

,  ss.  A.D.  19     .     Then  personally  appeared 

and  made  oath  to  the  truth  of  the  above  representation,  accord- 
ing to  the  best  of     h       knowledge  and  belief. 

Before  me, 

Justice  of  the  Peace. 

Citation  by  publishing  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day,  and  by  mailing  postpaid 
or  delivering  copy  of  citation  to  all  known  persons  interested  fourteen  days 
at  least  before  return  day. 


Petition  fob  Amendment  of  Record. 

To  the  Honorable  the  Judge  of  the  Probate   Court  in  and  for 
the  County  of 

Respectfully  represents  of  ,  in  said  County, 

that  on  the  day  of  A.  d.  19     ,  he  was  appointed  by 

this  Court  administrat  of  the  estate  of  late  of 

,  deceased  ;    that   said  was   also  sometimes   called 

and  sometimes  called 
Wherefore  your  petitioner  prays  that  the  files  and  records  in 
said  case  may  be  amended  by  inserting  after  the  name  , 

wherever  the  same  occurs,  the  words,  —  sometimes  called 
and  sometimes  called 

Dated  this  day  of  A.  d  19     . 


736  APPENDIX. 


COMMON WP:ALTH   of   MASSACHUSETTS, 

ss.  19     .     Personally  appeared   the  above-named 

,  and  made  oath  to  the  truth  of  the  facts  by  him  set 
forth  in  the  foregoing  petition. 
Before  me, 

Justice  of  the  Peace. 


Separate  Support  —  Petition  for  Execution — Trustee. 

To  the  Honorable  the  Judges  of  the  Probate  Court  in  and  for 
the  County  of 

Respectfully  represents  of         ,   in  said  County  of  , 

wife  of  of  said  ,  that  on  her  petition  for  separate 

supjiort  heretofore  filed  in  said  Court,  an  attachment  of  the 
goods  and  estate  of  her  said  husband,  and  also  of  his  goods, 
effects  and  credits  in  the  hands  and  possession  of  trtistee 

of  her  said  husband,  was  made  to  secure  the  decree  which  she 
might  obtain  for  such  support.  that  said  trustee  has  filed 

his  answer  that,  at  the  time  of  the  service  of  the  Court's  order 
upon  him,  he  had  in  his  possession  dollars  of  the  goods, 

effects  and  credits  of  her  said  husband,  that  said  Court  by 

its  decree  on  said  petition  for  separate  support  made   on  the 
day  of  A.  D.  19     ,  ordered  said  to  pay  your 

petitioner,  for  the  support  of  herself  and  the  maintenance  of 
minor  children,  the  sum  of  dollars,  forthwith,  and  a  further 

sum  of  dollars  on  each  and  every  thereafter, 

and  that  there  now  remains  due  and  unpaid  under  said  decree  the 
sum  of  dollars,  and  that  said  neglects  and  refuses 

to  pay  the  same, 

Wherefore  your  petitioner  prays  that  said  be  charged 

on  his  ansiver  as  trustee,  in  the  sum  of  dollars  ;  and 

that  an  execution  issue  in  favor  of  your  petitioner,  for  the  sum 
of  dollars,  against  the  goods,  chattels  and  lands  of  said 


PROBATE    FORMS.  737 

and  against  his  goods,  effects  and  credits  m  the  hands 
and  possession  of  trustee  of  said  jointly  and  severally. 

Dated  this  day  of  A.  d.  19     . 

Citation  by  delivering  a  copy  to  husband,  if  found  in  the  Commonwealth, 
at  least  seven  days  before  return  day ;  and,  if  not  so  found,  by  publication 
once  a  week  for  three  successive  weeks,  the  last  publication  to  be  one  day  at 
least  before  return  day. 


Separate  Support  —  Petition  to  charge  Trustee  and 
FOR  Execution. 

To  the  Honorable  the  Judges  of  the  Probate  Court  in  and  for 
the  County  of 

Respectfully  represents  of  ,  in  said  County 

of  ,  ,  wife  of  of  said  ,  that  on  her 

petition  for  separate  support  heretofore  filed  in  said  Court,  an 
attachment  of  the  goods  and  estate  of  her  said  husband,  and 
also  of  Ms  goods,  effects  and  credits  in  the  hands  and  possession 
of  trustee  of  her  said  husband,  was  made  to  secure  the 

decree  which  she  might  obtain  for  such  support.  that  said 

trustee  has  fled  his  answer  that,  at  the  time  of  the  service  of  the 
Court's  order  upon  him,  he  had  in  his  possession  dollars 

of  the  goods,  effects  and  credits  of  her  said  husband,  that 

said  Court  by  its  decree  on  said  petition  for  separate  support 
made  on  the  day  of  A.  d.     19     ,  ordered  said 

to  pay  your  petitioner,  for  the  support  of  herself  and  the  main- 
tenance of  minor  children,  the  sum  of  dollars,  forthwith, 
and  a  further  sum  of  dollars  on  each  and  every  there- 
after, and  that  there  now  remains  due  and  unpaid  under 
said  decree  the  sum  of  dollars,  and  that  said  neglects 
and  refuses  to  pay  the  same, 

Wherefore  your  petitioner  prays  that  said  be  charged  on 

his  answer  as  trustee,  in  the  stim   of  dollars ;  and 

that  an  execution  issue  in  favor  of  your  petitioner,  for  the  sum 
of  dollars,  against  the  goods,  chattels  and  lauds  of  said 

47 


738  APPENDIX. 

and  against  his  goods,  effects  and  credits  in  the  hands  and  pos- 
session of  trustee  of  said  jointly  and  severally. 

Dated  this  day  of  A.  D.  19     . 

Citation  by  delivering  a  copy  seven  days  at  least  before  return  day  or  by 
publication  once  a  week  for  three  successive  weeks,  the  last  publication  to 
be  one  day  at  least  before  return  day. 


Separate  Support  —  Execution  —  Trustee. 

COMMONWEALTH    OF   MASSACHUSETTS. 

,  ss.  Probate  Court. 

To  the  Sheriffs  of  our  several  Counties,  or  their  Deputies,  or 
any  Constable  of  the  City  of  ,  in  said  County, 

Greeting  : 

Whereas,  on  the  petition  of  ,  of  ,  in  said  County 

of  ,  wife  of  ,  of  said  ,  said  Court,  by  its  de- 

cree made  on  the  day  of  a.  d.  19      ,  ordered  said 

to  pay  said  for  the  support  of  herself  and  the  main- 

tenance of  their  minor  children,  the  sum  of  dollars,  forth- 

with, and  a  further  sum  of  dollars  on  the  day  of 

each  and  every  thereafter  ;   and  whereas,  under  said 

decree,  there   now   remains   due   and  unpaid  the  sum  of 
dollars,  whereof  execution  is  requested  to  be  done  ;  and  whereas, 
on  the  day  of  a.  d.   19     ,  it  was  ordered  by  said 

Court  that  execution  issue  for  the  sum  of  dollars  against 

said  ,  and  against  the  goods,  effects,  and  credits  of  the 

said  ,  in  the  hands  and  possession  of  ,  trustee 

of   said  ,   as   appears   of    record    in    this   Court,  whereof 

execution  remains  to  be  done  : 

You  are  hereby  commanded,  therefore,  that  of  the  goods,  chat- 
tels, or  lands  of  the  said  ,  in  his  own  hands  and  possession 
within  your  precinct  and  of  the  goods,  effects,  and  credits  of 
said  ,  in  the  hands  and  possession  of  said  trustee,  jointly 
and  severally,  you  cause  to  be  paid  and  satisfied  unto  the  said 


TROBATE   FORMS.  730 

,  at  the  value  thereof  in  money,  the  sum  of  dollars, 

with  interest  thereon  from  said  ,  and  thereof  also  to  satisfy 

yourself  for  your  own  fees ;  and  for  Avant  of  goods,  chattels,  or 
lands  of  the  said  ,  to  be  by  him  shown  unto  you,  or  found 

within  your  precinct,  to  the  acceptance  of  the  said  petitioner  to 
satisfy  the  sums  aforesaid,  with  interest  as  aforesaid;  and  for 
want  of  goods,  effects,  and  credits  of  said  ,  in  the  hands 

and  possession  of  the  said  trustee,  to  be  by  him  discovered  and  ex- 
posed to  you,  to  satisf}'  the  said  sum,  with  interest  as  aforesaid, 
with  your  own  fees,  you  are  commanded  to  take  the  body  of  said 

,  and  him  commit  unto  our  jail  in  ,  in  our  County 

of  ,  or  any  jail  in  your  precinct,  aforesaid,  and  him  detain 

in  your  ci;stody  within  our  said  jail  until  he  pay  the  full  sum  of 

,  dollars  with  interest  and  your  fees  as  aforesaid,  or  that 
lie  be  discharged  by  the  said  petitioner,  or  otherwise  by  order 
of  law.  Hereof  fail  not ;  and  make  return  of  this  writ,  with 
your  doings  therein,  into  the  Registry  of  Probate  at  ,  in 

said  County  of  ,  in  sixty  days  after  the  date  hereof. 

Witness,  ,  Esquire,  ,  Judge  of  said  Court,   this 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 

Register. 


Petitiox  for  Leave  to  Deposit  ix  Savings  Baxk. 

[R.  L.  c.  150,  §  25.] 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  ,   that  he      is  execut  — 

trustee  under  the  will  — administrator  of  the  estate  —  guardian 
of  ,    late  of  ,    in    said  County  of  ,  deceased  ; 

that  it  is  advisable  to  deposit  the  sum  of  dollars  in 

a  savings  bank  for  the  benefit  of  ,  for  the  reason  that  h 

is  of  residence  unknown  to  the  petitioner  ,  a  minor  and 

has  no  guardian. 

Wherefore  your  petitioner     pray     that     he     may  be  allowed 
to  deposit  said  sum  in  the  ,  in  the  name  of  the  Judge  of 


740  ArrENDix. 

said  Court,  to  accumulate  for  the  benefit  of  the  person  entitled 
thereto. 

Dated  this  day  of  ,  19     . 


Guardian's  Bond  —  Insane  Person. 

Know  all  Men  by  these  Presents, 

That   we,  of  in   the  County  of  as  principal    , 

and  of  in  the  County  of  and  of 

in  the  County  of  as  sureties,  and  all  within  the  Common- 

wealth of  Massachusetts,  are  holden  and  stand  firmly  bound  and 
obliged  unto  ,  Esquire,    Judge   of  the  Probate  Court  in 

and  for  the  County  of  ,  in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  said  Judge  and  his  successors  in  said  office ; 
to  the  true  payment  whereof  we  bind  ourselves  and  each  of  us, 
our  and  each  of  our  heirs,  executors  and  administrators,  jointly 
and  severally  by  these  presents.  Sealed  with  our  seals,  and 
dated  the  day  of  in  the  year  of  our  Lord  one  thou- 

sand nine  hundred  and 

The  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  guardian  of  of  ,  in  said  County 

of  ,   an  insane  person,   shall :  — 

First,-  make  and  return  to  said  Probate  Court,  at  such  time 
as  it  may  order,  a  true  inventory  of  all  the  real  and  personal 
estate  of  said  ward  that  at  the  time  of  the  making  of  such  in- 
ventory shall  have  come  to  the  possession  or  knowledge  of  said 
guardian  ; 

Second,  manage  and  dispose  of  all  such  estate  according  to  law 
and  for  the  best  interests  of  said  ward,  and  faithfully  discharge 
h  trust  in  relation  to  such  estate,  and  to  the  custody  and 
maintenance  of  said  ward; 

Third,  render  upon  oath,  at  least  once  a  year,  until  h  trust 
is  fulfilled,  unless  h  is  excused  therefrom  in  an}'  year  by  said 
Court,  a  true  account  of  the  property  in  h  hands,  including  the 
proceeds  of  all  real  estate  sold  or  mortgaged  by  h     and  of  the 


PROBATE   FOKMS.  741 

management  and  disposition  thereof,  and  also  render  such  ac- 
count at  such  other  times  as  said  Court  may  order  ;  and 

Fourth,  at  the  expiration  of  h  trust,  settle  h  account  in 
said  Court,  or  with  said  ward,  or  h  legal  representatives,  and 
pay  over  and  deliver  all  the  estate  remaining  in  h  hands,  or 
due  from  h  on  such  settlement,  to  the  person  or  persons  law- 
fully entitled  thereto ; 

Then  this  obligation  to  be  void,  otherwise  to  remain  in  full 

force  and  virtue. 

Signed,  sealed  and  delivered 
in  presence  of 

,  ss.  A.  D.  19     .     Examined  and  approved. 

Judge  of  Probate  Court. 

I,  the  within-named  guardian,  declare  that,  to  the  best 

of  my  knowledge  and  belief,  the  estate  and  effects  of  the  within- 
named  ward  do  not  exceed  in  value  the  following-men- 
tioned sums,  viz.  : 

Eeal  Estate,  $ 

Personal  Estate,  f 
[sign] 


Petition  by  Commissioners  for  Sale  of  Real  Estate. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represent  that  they  are  the  commissioners 

appointed  by  said  Court  to  make  partition  of  certain  real  estate 
hereinafter  described,  among  the  tenants  in  common  thereof, 

Said  real  estate  is  situat  ,  in  said  County  of  , 

and  is  bounded  and  described  as  follows,  to  wit : 

That  said  real  estate  cannot  be  advantageously  divided. 

Wherefore  your  petitioners  pray  that  they  be  ordered  by  said 
Court  to  make  sale  and  conveyance  of  said  real  estate  at  public 
auction  for  cash,  and  to  distribute  and  pay  over  the  net  proceeds 
of  the  sale  in  such  manner  as  to  make  the  partition  just  and 
equal. 


742  APPENDIX. 

The  undersigned,  being  all  the  persons  interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  delivering  a  copy  to  each  person  interested  who  can  be  found 
in  the  Commonwealth,  fourteen  days  at  least  before  return  day ;  and,  if  any 
one  cannot  so  be  found,  by  publication  once  a  week  for  three  successive  weeks, 
the  last  publication  to  be  one  day  at  least  before  return  day. 


Petition  fob  Trusteeship  to  fill  Vacancy. 

To  the  Honorable  the  Judge  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  of  ,   in  the  County  of  , 

that  late  of  ,   in  said  County  of  ,    deceased, 

testate,  by  h  last  will  and  testament,  duly  proved  and  allowed 
on  the  day  of  A.  d.  19       in  said  Court,  did  therein 

give  certain  estate  in  trust  for  the  use  and  benefit  of  that 

was  duly  appointed  trustee  thereof,  and  has  before 

the  objects  of  said  trust  have  been  accomplished,  that  there  is 
no  adequate  provision  made  in  said  will  for  supplying  the 
vacancy  caused  by  said  that  your  petitioner  is  will- 

ing to  accept  said  trust,  and  give  bond  according  to  law,  for 
the  faithful  discharge  thereof;  he  therefore  pray  that  he,  or 
some  other  suitable  person,  be  appointed  trustee  as  aforesaid, 
according  to  the  provisions  of  the  law  in  such  case  made  and 
provided. 

Dated  this  day  of  A.  d.  19     . 

The   undersigned,  being  all  the  persons   interested,  hereby 
assent  to  the  foregoing  petition. 

Citation  by  publication  once  a  week  for  three  successive  weeks,  the  last 
publication  to  be  one  day  at  least  before  return  day. 


PROBATE  FORMS.  743 


Petition  for  Leave  to  bring  Suit  on  Bond. 

To  the  Honorable  the  Jiid(je  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully   represents  of  ,    in   said  County   of 

,  that  lie  is  and  is  interested  in  the  estate  of 

late  of  said  ,  deceased  ;  that  by  a  decree  of  said  Court, 

dated  the  day  of  a.  d.  19     ,  of  said  , 

was   duly  appointed  executor  —  administrator  —  of  the  will  — 
estate  of  said  deceased  ,  and  gave  bond  with  of 

and  of  as  sureties,   for  the  faithful  performance  of 

the  trust  of  executor  —  administrator  as  aforesaid;  that, 
and  said  has  failed  to  perform     h      duty  in  the  discharge 

of  said  trust. 

Wherefore  your  petitioner  prays  that  he  may  be  authorized 
to  bring  an  action  in  the  Superior  Court  upon  the  bond  of  said 
executor  —  administrator — in  the  name  of  the  Judge  of  the 
Probate  Court,  for  the  recovery  of  the  damage  sustained  by  such 
neglect  and  maladministration  of  said 

Dated  this  day  of  a.  d.  19     . 


Waiver  of  Will. 

[R.  L.  c.  135,  §  16.] 

[This  waiver  must  be  filed  in  the  registry  of  probate  within  one  year  after  the  probate  of 
the  will.  If  curtesy  or  dower  is  desired  the  claim  therefor  under  R.  L.  c.  132,  §  1,  must 
also  be  filed  within  one  year.] 

To  the  Honorable  the  Judges  of  the  Probate  Court  in  and  for  the 
County  of  ': 

Respectfully  represents  of  in  the  County  of  , 

that     he  is  the  widow  —  husband  —  of  late  of 

in  the  County  of  ,  deceased,  that  the  will  of  said  deceased 

was  admitted  to  probate  in  said  County  by  decree  of  this  Court 
dated  19     ,  and    he  doth  hereby  waive  any  provisions  that 


744  APPENDIX. 

may  have  been  made  in  it  for  h  and  doth  claim  such  portions 
of  the  estate  of  the  deceased  as  he  would  have  taken  if  the 
deceased  had  died  intestate. 

Dated  this  day  of  19     . 


Claim  of  Dower  or  Curtesy  and  Waiver  of  Will. 

[R.  L.  c.  132,  §  1.] 

[This  claim  must  be  filed  within  one  year  from  the  approval  of  the  bond  of  the  executor 
or  administrator  of  the  deceased.  If  the  deceased  left  no  will,  the  clause  below  relating 
thereto  should  be  omitted.  If  the  deceased  was  Insolvent  or  nearly  so,  or  had  in  his  life- 
time conveyed  real  estate  which  was  a  large  part  of  his  whole  estate,  without  the  claimant 
herein  joining,  it  may  be  for  the  interest  of  such  to  claim  curtesy  or  dower  in  place  of  the 
provisions  in  fee  of  the  above  named  chapter,  as  they  are  subject  to  the  debts  of  the  de- 
ceased, while  curtesy  or  dower  is  not.] 

To  the  Honorable  the  Judges  of  the  Probate  Court  in  and  for  the 
County  of 

Respectfully  represents  of  in  the  County  of 

that    he  is  the  widow  —  husband — of  late  of 

in  the  County   of  ,   deceased;  that  on  the  day   of 

19     ,  the  bond  of  the  executor  —  administrator  — 

of  the  estate  —  will  —  of  the  deceased  was  approved  by  this 
Court,  and  that  he  doth  hereby  elect  and  claim  dower  —  cur- 
tesy —  in  the  estate  of  the  deceased,  instead  of  the  interest  in 
real  property  of  the  deceased  given  in  section  three  of  chapter 
one  hundred  and  forty  of  the  Revised  Laws. 

And  he  doth  also  hereby  waive  any  provisions  that  may 
have  been  made  in  the  will  of  the  deceased  for  h  and  doth 
claim  such  portions  of  the  estate  of  the  deceased  as  h  would 
have  taken  if  the  deceased  had  died  intestate. 

Dated  this  day  of  19     . 


INDEX. 


INDEX. 


A. 

ABANDONED  PROPERTY  OF  NON-RESIDENTS,  page 

appointment  of  receiver  for,  wlien  and  how 342-346 

ABSENTEES,  ESTATES   OF, 

appointment  of  receiver  for,  when 341-346 

distribution  of 345,  346 

lease  and  sale  of,  by  receiver       344,  345 

settlement  of 345, 346 

ABSENT   HEIR, 

presumption  of  death  of,  when 357 

no  presumption  of  marriage  or  issue  of 357 

ACCOUNTS, 

administrators  and  executors  allowed  for, 

assessments  paid,  if  legally  laid 296 

charges  of  administration 299 

certain  claims  paid,  when  estate  is  insolvent 298 

costs  and  expenses  of  suits 300,  note 

debts  paid,  if  legally  due 295 

debts  due  themselves  and  interest  thereon 303,  304 

expenses  of  last  sickness  of  deceased 298 

funeral  expenses          298 

judgments  rendered  against  them 300 

loss  on  sale  of  personal  property 302 

money  paid  surety  on  probate  bonds 300,  note 

not,  for  claims  barred  by  statute  of  limitations 297 

not,  for  distributive  payments  to  residuary  legatees  ....  304 

chargeable  for, 

amount  of  debts  uncollected  by  their  neglect 290 

compound  interest,  when      .  " 293 

debts  due  from  themselves 294 

gain  on  sale  of  personal  property 286 

interest  on  funds  in  their  hands,  when 292 

interest,  profit  and  income  of  personal  property 286 


748  INDEX. 

ACCOUNTS  (continued).  paob 
chargeable  for, 

not,  for  property  stolen  without  their  default 289 

proceeds  of  real  estate  sold 286 

profits  of  business  of  deceased,  if  continued  by  them     .     .     •  290 

rents  of  real  estate,  when 293 

value  of  personal  property,  whether  inventoried  or  not  .     .    .  286 

of  property  lost  through  their  negligence 288 

administi-ators,  executors,  guardians  and  trustees, 

to  render  annual 279 

to  render,  although  not  legally  appointed 280 

auditor  may  be  appointed  to  examnie 312 

citation  to  render,  how  issued 284 

may  issue,  though  executor,  etc.,  has  settled  with  parties  and 

taken  their  receipts 281 

conservator  to  render 143 

evidence  of  payment  or  delivery  by  administrator,  etc.,  how  per- 
petuated     316,  note 

executor,  etc.,  faiUng  to  render,  may  be  cited 284 

failure  to  render,  unfaithful  administration 162,  230,  284 

final,  not  to  be  settled  until  succession  tax  paid 279,  316 

form  of 285 

second  and  additional 304 

guardian  ad  litem,  when  appointed       313,  314 

guardians  allowed  for , 

expenses  of  guardianship  and  services 311 

expenses  of  ward's  support  and  education,  when 309 

interest  on  advances 310 

guardians  and  trustees  chargeable  for, 

compound  interest,  when 307 

gain  on  sale  of  personal  property 305 

income  of  real  estate 305 

interest  received 306 

loss  of  interest  from  neglect  to  invest 306 

losses  from  improper  investments 306 

value  of  personal  property  as  inventoried 305 

notice  of  presenting  for  allowance,  to  be  given,  unless      ....  312 

who  entitled  to 312 

of  joint  executors,  etc  ,  may  be  allowed  on  oath  of  one      ....  315 

one  of  two  joint  executors,  etc.,  dying,  survivor  to  render     .     .     .  281 

public  administrator  to  render  on  appointment  of  successor  .     .     .  282 

on  first  day  of  January  annually 283 

neglecting  to  render,  district  attorney  to  act 283 

separate,  to   be   rendered    by   guardian  of  several  wards  jointly 

interested       312 

settled,  when  may  be  opened  to  correct  error 316 


INDEX.  749 

ACCOUNTS  (continued).  paok 

sole  executor,  etc.,  dying,  by  whom  to  be  rendered 281 

special  administrators  to  render,  when  ordered  by  court  ....  280 

trustees  allowed  for  expenses  of  trust  and  services 311 

ACTIONS  {bij  and  against  executors  and  administrators), 

barred,  wlien  estate  exhausted  by  payment  before  notice  of  claim 

or  by  payment  of  preferred  claims,  etc 203,  204,  212,  214 

limitation  of,  against  executors  and  administrators    124,  195,  199,  200, 

203 
proceedings  when   creditor's   right  of  action   accrues   after  two 

years .       199, 200 

survival  of    .     . 494,  note,  495,  note 

set-off,  riglit  of       205 

tort,  liability  of  executor  or  administrator  in 205,  495 

trustee  process  against  executors  and  administrators 499 

(See  Executor,  actions  by  and  against.) 

ADMINISTRATION, 

ancillary 104 

county,  in  what  must  be  applied  for 106 

creditors  entitled  to  administer,  when 112 

de  bonis  non 102,103,114 

to  whom  granted 114 

de  bonis  non  with  will  annexed 103 

granted,  in  what  cases  and  where 102 

granted  to  public  administrator,  when 109 

kindred,  lineal  or  collateral 109 

next  of  kin,  who  are 108 

when  entitled  to  administer 107,110 

original,  to  whom  granted 107-114 

petition  for 115 

notice  of,  to  parties  interested 116 

notice  of,  when  dispensed  with 117 

presumption  of  death,  when 118 

proof  of  death 118 

special,  when  granted 104 

revoked  by  proof  and  allowance  of  will  of  deceased 165 

renunciation,  by  party  entitled  to  administer,  to  be  in  writing  .     .     117 

time,  within  wliat  must  be  applied  for 106 

widow,  right  of  to  admmister 107,  110 

ADMINISTRATOR, 

account.     (See  Accounts.) 

settlement  of,  when  good  defence  to  suit  on  bond  .     .     .     205,  note 

actions  bi/  and  against.     (See  Executor,  actions  by  and  against.) 

affidavit  of  notice  of  appointment  of 193 


750  INDEX. 

ADMINISTRATOR  {continued).  page 

appointment  of 102-125 

notice  of,  to  be  given 192 

authority   of,   except  special   administrator,   suspended   pending 

appeal  from  decree  appointing 123 

bond  of • 119 

exempt  from  giving  sureties,  when 120,  121 

creditor,  when  may  be 107 

de  6on«s  ??on,  when  appointed 102,103,114 

bond  of 120 

de  bonis  non  with  will  annexed,  when  appointed 103 

bond  of 120 

domestic  trust  company  may  be 108 

husband  of  married  woman,  right  to  be 107 

collateral  legacies  and  successions,  taxes  on  to  be  paid  by     .    204,  note, 

208,  note 

collection  of  the  efEects  by 174-176 

complaints  by  or  agaiust  for  fraudulent  concealment,  embezzle- 
ment, etc.,  of  property  of  the  estate 175 

corporation  stock,  liabiUty  of  administrator,  etc.,  for 502 

right  of  voting  on 502 

delivery  of  property  by  or  to  successor,  enforcement  of    .    .    .   13,  165 

distribution ~ 354 

setoff  against  distributive  share  of  debt  due  from  distributee    .     .     207 
inventory  to  be  returned  within  three  months  from  appointment, 
by,  except  by  administrator  with  will  annexed  who  has  given 
bond  as  residuary  leg<atee 168 

what  to  include  and  by  whom  made 171-173 

one  only  required 174 

liability  of,   for  loss   resulting  from   his  unreasonable  delay   or 

neglect 176 

liability  of,  under  license  for  sale  of  real  estate 260,  261 

mortgage  of  real  estate  by,  how  authorized 272 

non-resident,  to  appoint  agent  in  this  commonwealth    .     .    .      102,  194 
notice  of  appointment  to  be  given 192 

proof  of  giving,  by  affidavit 193 

next  of  kin,  when  to  be  appointed 107,110 

public,  in  what  cases  to  act 114 

bond  of 121 

sales  by 27 1 

special,  when  appointed 104 

authority  of 123 

bond  of       121 

may  act  pending  appeal,  unless 123 

who  entitled  to  be  appointed       107,  108 

widow,  when  entitled  to  be 107,  110 


INDEX.  751 

ADMINISTRATOR  {continued).  page 
release  of  certain  remote   interests   in  real   property   by,  when 

authorized 272 

removal  and  resignation  of 159-166 

decrees  making  removals,  eflfective,  pending  appeal,  unless     .  166 

grounds  for  removal 159,  160,  162 

conflict  of  interest 159 

insanity  or  incapacity 159 

neglect  to  furnish  bond  or  sureties  or  to  render  account  when 

required 162 

removal  from  state  and  failure  to  appoint  agent  here 162 

unfaithful  administration 162 

sale  of  outstanding  debts  and  claims  by,  when  authorized     .     .     .  185 

of  personal  property 184 

sale  of  personal  property  by  foreign 186 

sales  oj  real  estate  by.     (See  Executor,  sale  of  real  estate  by.) 

scire /ac(as,  writs  of,  when  may  issue  against 206 

temporary  investments  by,  how  authorized 190 

ADMISSION   OF  ASSETS, 

by  executor  who  is  residuary  legatee  and  gives  bond  to  pay  debts, 

etc.,  conclusive 98,  215 

ADOPTION  OF   CHILDREN, 

appeal  from  decree  for,  when 484 

/'child,"  used  in  grant,  devise,  etc.,  includes  adopted  child,  when  .    483 

consent  to,  when  required 480 

of  child  over  fourteen  years  of  age  .     .     .     : 480 

of  guardian,  if  any 480 

of  husband,  of  married  woman 480 

of  mother  of  illegitimate  child 480 

of  parent  or  parents 480 

of  previous  adopting  parents 480 

consent,  except  of  child  and  her  husband,  when  not  required     .     .     480 

decree  for,  effect  of 482,  483 

as  to  natural  rights  and  duties 482 

as  to  succession  to  property 483 

appeal  from,  when  allowed 484 

determination  of  legal  consequences  of  former,  if  child  previ- 
ously adopted       484 

petitions  to  annul,  who  may  bring,  and  on  what  grounds    484,  note 
requests   for   certain   ruhngs    at    trial    of,   properly  re- 
fused      •     479,  note 

distribution  of  property  of  adopted  person  dying  intestate     .     .     .    483 

guardian  ad  litem,  when  appointed 481,  482 

jurisdiction  of  probate  court 479,  483 

petition  for,  by  whom  and  in  what  county 479 


752  INDEX. 

ADOPTION   OF    CHILDREN  {continued).  page 

by  non-residents  in  what  county 479 

husband  or  wife  to  join  in 479 

notice  of,  what  required  without  written  consent  of  certain 

persons 481  and  note 

to  state  board  of  charity,  when      ....         481 

state  board  of  charity,  certain  powers  of  and  notices  to     .  481,  485,  486 

succession  of  adopted  persons  to  property 483 

of  persons  adopted  in  another  state  to  property  here ....    484 

who  may  be  adopted 479 

ADVANCEMENTS, 

distribution,  in  case  of 363,  364 

evidence  of 361-363 

interests  not  to  be  computed  on .360 

may  be  made  in  real  or  personal  estate 360 

not  to  be  refunded,  though  exceedmg  share 360 

questions  concerning  to  be  determined  by  probate  court  ....    361 

value  of 363 

widow's  share,  in  case  of 363 

AFFIDAVIT, 

by  administrator,  etc.,  of  notice  of  appointment 193 

eflFect  of 193 

by  administrator,  etc.,  of  notice  of  time  and  place  of  sale  of  real 

estate 255 

effect  of 255 

by  commissioners  ordered  to  sell  lands 388 

by    persons    other    than    administrators,   etc.,   how    and    when 

made 193,  note,  255,  note 

when  not  filed,  notice  proved,  how 255 

AGENT, 

for  absent  party  in  proceedings  for  partition 382 

non-resident  executor  and  administrator  to  appoint 94,  194 

service  of  process  on 95 

non-resident  guardian  to  appoint 142,  194 

non-resident  trustee  to  appoint 154,  194 

neglect  to  appoint,  by  administrator,  etc.,  cause  for  removal     .    .     194 
AGREEMENT, 

to  give  legacies 88 

to  make  wills 88 

written,  for  conveyance  of  land,  specific  performance  of  ...     .     448 
ALLOWANCES   TO    WIDOWS   AND   MINOR   CHILDREN, 

amount  of,  in  discretion  of  court 177,179 

appeal  from  decree  upon  widow's  petition  for 182 

distinct  from  widow's  distributive  share 182 

enforced  by  action 183 


INDEX.  753 

ALLOWANCES   TO   WIDOWS,   ETC.  (continued).  page 

made  even  when  estate  insolvent 180 

priority  of 180 

purpose  of 179 

real  property  may  be  sold  to  pay,  when 177 

ALLOWANCES   TO   WIVES   OF   INSANE    PERSONS   UNDER 

GUARDIANSHIP 183 

ANCILLARY   ADMINISTRATION, 

granted,  wlien 104 

granted  here,  although  no  administrator  appointed  in  place  of  de- 
ceased's domicile 105 

or  alttiough  will  of  deceased  not  proved  at  place  of  his  domi- 
cile        105 

creditor  here,  to  be  first  paid  from  estate 236 

if  estate  insolvent,  to  have  just  proportion 237 

residue  of  estate,  how  disposed  of 237 

APPEAL, 

bond,  none  required  on 468,  469 

claim  of 467,  469,  476 

complaint  for  affirmation  of  decree,  on  failure  to  enter  or  prose- 
cute   475 

consolidation  of  separate 468 

decree  remaining  in  force,  notwithstanding,  unless   ....   472,  notes 

appointing  special  administrator 472,  note 

in  equity 472,  note 

removing  executor,  etc 472,  note 

dismissal  of^  by  probate  court,  when 475 

effect  of 471-473 

suspends,  ordinarily,   but  does   not  vacate   decree   appealed 

from 471 

entry  of 467,  469,  477 

late,  wlien  allowed 470,  477,  478 

from  alh)waiice  or  disallowance  of  claim  against  insolvent  debtor 

or  against  insolvent  estates  of  deceased  persons  226-228,  476-478 

claim  and  notice  of 226,  476 

costs  on 227,  477 

entry  of,  where  and  wlien 226,  469,  477 

late  entry  of,  wlien  allowed 228,  478 

proceedings  on 477,  478 

statement  of  claim 477 

waiver  and  arbitration 228,  477 

issues  of  fact,  to  he  tried  by  jury,  framed  when 469,  474 

framing  of,  discretionary  witli  court  in  probate  cases      .     474,  note 
to  be  framed  on  demand  of  debtor,  etc.,  on  appeal  from  de- 
cision granting  or  refusing  discharge  of  insolvent  debtor      .     469 
48 


754  INDEX. 

APPEAL  (continued),  paob 

proceedings  on,  in  appellate  court 473 

affirmation  or  reversal,  in  whole  or  in  part,  of  decree  appealed 
from 474 

appeal  to  full  court  from  decision  of  single  justice  as  to  matter 
of  fact  as  well  as  of  law 475 

appellant  to  file  statement  of  objections 467 

appellant,  if  creditor,  to  file  statement  of  claim 469 

issues  of  fact,  for  trial  by  jury,  when  framed      ....      469,  474 

judgment  of  appellate  court  to  be  carried  into  effect  by  probate 
court 474 

jurisdiction  of  appellate  court,  to  what  limited 474 

taken  to  superior  court,  in  what  cases 463,  469 

from  decrees  as  to  care,  custody,  and  maintenance  of  minor 
children 463 

from  decrees  as  to  separate  property  or  separate  support  of 
married  women 463 

from  decisions  by  court  of  insolvency  allowing  or  disallowing 
claim,  and  granting  or  refusing  disciiarge  of  insolvent  debtor    469 

to  superior  or  to  supreme  judicial  court  from  allowance  or  dis- 
allowance of  claims  against  insolvent  estates  of  deceased 

persons 469 

taken  to  supreme  judicial  court,  except  as  otherwise  provided  .     .    463 

waiver  of 472,  477 

who  entitled  to 

administrator  de  bonis  non,  from  decree  allowing  account  of 
original  executor  or  administrator 464 

any  person  "aggrieved,"  when  his  rights  are  affected  by  de- 
cree or  order 464 

creditor,  when, 464,  note,  467,  note,  469,  476 

foreign  administrator  from  decree  appointing  administrator 
here 466 

purchaser  of  land  from  heirs  or  devisees,  when 466 

ANNUITIES, 

tables  for  ascertaining  present  value  of 420,  421 

APPRAISAL   OF   ESTATES,     (^ee  Inventory.) 

APPRAISERS, 

appointment  and  authority  of 172,  173 

fees  of       173,  note,  385,  note,  413,  note 

of  estates  subject  to  collateral  inheritance  tax,  appointed  on  appli- 
cation of  state  treasurer      173,  note,  521 

one  appraiser  only  may  be  appointed,  when 172 

ARBITRATION, 

of  claim  of  executor  or  administrator  against  estate 303 

of  claim  of  heirs  for  income  of  real  estate 293 


INDEX.  755 

ARBITRATION  [continued).  paoe 
of  claims  presented  to  commissioners  of  insolvent  estates,  when 

appeal  lias  been  taken  and  waived   .         228,  477 

of  demands  generally,  court  may  authorize 449 

proceedings  on 449 

ASSETS, 

what  are 169,  170,  notes 

goods  delivered  up  by  administrator,  etc  ,  on  judgment  in  replevin, 

not 296,  note,  497 

marshalling  of,  for  payment  of  debts 252 

ASSISTANT   REGISTERS   OF   PROBATE, 

appointed,  how  and  for  what  counties 23 

bond  of 24 

duties  of 24 

prohibited  from  acting  as  counsel  or  attorney,  from  holding  certain 
trust?,  and  from   being  interested  in  the  fees  and  emoluments 

thereof 25,  26 

suits  on  bond  of 25 

vacancy  in  oflBce  of,  to  be  reported  by  register 24 

ATTESTATION   CLAUSE, 

of  will       38,39 

ATTESTING   WITNESSES   TO   WILL, 

affidavit  of,  before  register  of   probate,  when  sufficient  to  prove 

will 72 

attestation  of,  not  evidence  that  witness  believed  testator  to  be 

sane, 49 

competency  of,  restored  by  pardon 41 

not  restored  by  remission  of  sentence 41 

contradiction  of,  when  allowable 75 

crimes,  what  disqualify       41 

devise  to  void,  unless 40 

diligence  required  in  search  for  absence 73 

fees  of 505 

failure  of  recollection  of 75 

handwriting  of,  proof  of 73 

incompetency  of,  by  reason  of  interest,  crime,  etc 39 

subsequent  incompetency  of  not  to  prevent  probate    ....  41 

"  mark,"  may  subscribe  by 38 

marks  of,  how  proved 74 

must  be  competent  at  time  of  attesting 41 

number  necessai-y       32 

opinions  of,  as  to  testator's  sanity,  admissible 47 

presence  of  testator,  what  is 36,  37 

presumptions  as  to  attestations  of 38 

Bubscribing  by,  in  each  other's  presence,  not  required 38 


756  INDEX. 

ATTESTING   WITNESSES   TO  WILL  (continued).  pas. 

in  testator's  presence,  required 36 

summoned,  liow 73 

testimony  of  all  of,  when  required  .     .     .     .     « 73 

of  one  only,  when  sufficient  to  prove  will 72 

ATTORNEY, 

may  enter  appearance 14,  27 

retained  on  behalf  of  insane  person  may  visit  client  in  hospital, 

when 503 

service  of  notices  and  processes  upon 14,  27 

when  may  testify,  on  probate  of  will,  as  to  directions  given  him  by 

testator  for  drafting  the  will 59 

AUDITORS, 

may  be  appointed  to  examine  probate  accounts    . 312 


B. 

BOARD   OF   CHARITY, 

to  consider  applications  for  children  from  state  institutions  for 

adoption 486 

to  seek  out  suitable   persons   willing  to  adopt  abandoned,   etc., 

children 487 

to  supervise  infants  under  two  years  taken  for  adoption    ....    485 

BONDS, 

action  on,  limitation  of  time  for  bringing 440 

amount  of  penalty  in 430 

approval  of,  by  judge  or  register 428,  429 

certificate  of  value  of  property,  required  on 480 

condition  of 97,  119,  121,  140,  155 

French  spoliation  awards,  of  administrators  of 446 

condition  of 447 

joint  or  separate,  wlien 429 

new,  when  may  be  required 430 

failure  to  give,  effect  of 431 

payable  to  judge  of  probate  and  his  successors,  except      .     .     .   21,429 

separate  or  joint,  when        429 

suits  on,  of  executors  and  administrators 432 

continuance  of,  at  request  of  sureties,  when  resident  principal 

not  made  defendant 442 

execution  in,  how  awarded 443 

money  received  on,  is  assets  of  estate 444 

leave  of  court  generally  necessary  for 432,  437-440 

appeal  from  decree  granting 441 

granted  only  by  decree 441 

leave  of  court  unnecessary  for,  when 434-437 


INDEX.  757 

BONDS  (continued).  paob 

limitation  of  time  for  bringing 440 

petition  for  leave  to  bring,  by  any  person  interested  ....  440 

citation  to  issue  on    ." 441 

facts  to  be  shown  on  bearing  on 441 

register  may  grant  when  judge  is  obligor  or  surety  on 

bond  given  to  former  judge 442 

to  be  brouglit  in  superior  court 442 

suits  on,  of  trustees  and  guardians 445 

limitation  of,  against  guardian's  sureties    .     .    ,. 446 

proceedings  to  autliorize 446,  447 

writs  in,  by  whom  to  be  indorsed 442 

sureties  on,  qualifications  of 428 

discharge  of,  when 431 

liable,  when  principal  gives  new  bond,  for  breaches  committed 

before  approval  of  new  bond 432 

release  of,  in  case  of  marriage  of  female  principal,  when     .     .  431 

BROTHERS, 

wiien  entitled  to  administer  as  next  of  kin 110 

when  to  inherit 321 


c. 

CEMETFRIES, 

rights  of  husband  and  widow  in  family  lot  in 334 

sale  of  lots  in  by  executors,  etc.,  how  authorized 277 

special  trust  funds  for  care,  etc.,  of,  wiio  may  hold  ....      152,  504 

CEMETERY  CORPORATIONS, 

may  hold  in  trust  funds  for  certain  purposes 152 

CHANGE  OF  NAME, 

annual  return  and  publication  of,  by  whom  to  be  made    ....    486 
none  to  be  made,  e.xcept  on  adoption  of  a  child  or  marriage  or 
divorce  of  a  married  woman,  unless  for  sufficient  reason,  con- 
sistent with  public  interests,  and  satisfactory  to  probate  court  .     .     485 

probate  court,  jurisdiction  of,  to  decree 485 

register  of  probate  to  make  annual  returns  of,  to  secretary  of  state    486 

CHURCHES, 

may  appoint  trustees,  when 152 

CITATIONS, 

ma}'  be  issued  at  any  time 11 

may  be  issued  by  register 18 

service  of 71 

CITY, 

or  town  may  hold  certain  funds  m  trust,  when 152 


758  INDEX. 

CODICIL,  PAOK 

admitted  to  probate  subsequent  to  probate  of  will 76,  77 

effect  of,  by  republication 44 

upon  unattested  will 43 

upon  will  executed  by  person  under  age,  etc 43,  44 

execution  of 42 

included  in  term  "  will  " 42 

may  not  be  revoked,  though  will  is 64 

revocation  of  will  by 64 

COLLATERAL  INHERITANCE  TAX, 

action  to  recover  by  state  treasurer 280,  523,  523,  note 

penalty  for  not  filing  inventory,  for 169,518,519 

administration,   state   treasurer  may   apply   for  .     70,  note,  113,  note, 

522 
administration  accounts,  no  final  settlement  of  before  payment  of 

tax 279,  316,  522 

amount  of 513 

practice  of  state  treasurer's  department  in  determining  .     .     .    623 

tax  on,  when  payable 517,  note 

amount  received  from,  in  Massachusetts      .     , 508,  note 

annuities,  value  of,  how  computed       ....     173,  419,  521,  522,  note 

tables  of  value  of     ... 420,  421 

appraisal,  remainder   to   collateral   heir,  of  property   subject   to 

tax 173,  note,  479,  note,  521,  522,  note 

bequests,  limit  of  value  of,  exempt  from  tax 507  and  note 

constitutionality  of,  under  Acts  of  Congress 509,  note 

under  laws  of  states  other  than  Massachusetts   ....     510,  note 

under  laws  of  Massacliusetts 512,  note 

decisions  construing  Massachusetts  law  .     .     .  613-517,  notes,  520,  note 

executor,  bequest  to,  taxable  when 514 

collection  l)y,  of  tax  from  heir  or  legatee  .     .     .    208,  note,  517,518 

personal  liability  of  a  foreign 514,  note,  519,  520,  note 

sale  of  land  by,  for  payment  of 242,  note,  243,  518 

exemptions,  bequests  under  $500 507 

bequests  to  charitable,  etc.,  societies     .     .  506,  513,  note,  514,  note 

to  city  or  town  for  public  purposes 506,  507,  note 

to  certain  relations  of  decedent 506 

history  and  definition  of 506-509,  notes 

interest  payable  on  overdue 517 

inventory  of  property  subject  to,  when  to  be  filed     .     .      169,  note,  518 
copy  of,  to  be  sent  by  register  to  state  treasurer    ....    17,  519 

penalty  for  neglect  to  file 519 

jurisdiction,  probate  court  to  have,  subject  to  appeal  .     .    8,  note,  522 

and  note 

liability  of  administrator,  etc.,  for  payment  of 606 

lien  of       204,  note,  617 


INDEX.  759 

COLLATERAL   INHERITANCE   TAX  (contimied) .  paob 

non-residents,  notice   required  of  transfer  of  assets  of  deceased     .    519. 

520,  521 
notice  by  executor,  etc.,  to  state  treasurer  of  estate  liable  to      .     .     519 

payment  of  tax,  when  and  to  whom 517 

action  for,  by  state  treasurer 52.3  and  note 

corporate  stock  of  deceased  non-residents      .     .    519,  520  and  note 

extension  of  time  for,  when 513,  note,  523 

foreign  executor,  etc.,  by,  when 619 

legacy  charged  on  real  estate 518 

suspension  of,  when 513,  note,  517 

voucher,  proper,  for 523 

probate  court,  to  iiave  jurisdiction,  subject  to  appeal,  of  questions 

relative  to 8,  note,  522 

property  subject  to 506 

appraisal  of 173,  419,  note,  521,  522,  notes 

administration  charges  and  debts  to  be  deducted  from    .    514,  note 

deceased  non-residents,  of 514,  note,  519,  520 

legacy  tax  paid  United  States  to  be  deducted  from     .    .    614,  note 

pecuniary  legacy  for  limited  period 518 

real  estate  charged  with  legacy       618 

rate  of  tax 613 

real  estate,  legacies  charged  on,  as  to 518 

sale  of,  for  payment  of  tax 242,  24-3,  618 

refunding  of  tax,  when    .     .     .    ■ 521 

register  to  send  copy  of  inventory  to  state  treasurer      ....   17,  519 

notice  by,  if  inventory  not  filed 519 

remainder  to  collateral  heir  taxable 508-613 

specific  legacy,  collection  of  tax  on 618 

state  treasurer,  action  to  recover,  by 623,  note 

administration,  to  apply  for,  when 622 

amount  of  tax,  how  usually  determined  by 623 

party  to  petition  of  foreign  executor,  etc.,  for  license  to  re- 
ceive and  dispose  of  personal  property 521 

trustees,  bequests  to,  when  taxable 514 

value,  of  annuities,  how  computed    .     .     .     173,  419,  521,  522,  notes 
of  property,  subject  to  tax,  bow  determined      173,  note,  419,  note 

621,  522,  notes 
time  of  ascertaining,  date  of  decedent's  death      ....    515,  note 

COMMISSION, 

or  warrant  may  be  revoked  by  probate  court  for  cause       12,  385,  note, 

412,  note, 
new  one  may  issue 12,  385,  note,  412,  note 

COMMISSIONERS, 

to  assign  dower  (see  Dower) 412 


760  INDEX. 

COMMISSIONERS  {continued).                                           '  paob 

to  examine  claims  agamst  insolvent  estates  (see  Insolvent  Estates)  215 

to  make  partition  (see  Partition) 383 

COMPLAINT, 

against  person  concealing  will 92 

for  embezzhng  estate  of  deceased  person  or  ward 14,  175 

for  non-entry  of  appeal 475 

COMPROMISE, 

of  demands   in  favor  of   or   against  estate,  probate  court   may 

autliorize  executors  to  make 449 

proceedings  on 449 

CONTEMPT, 

power  of  probate  court  to  punish 12 

CONTINGENT   RIGHTS, 

in  real  or  personal  estate,  sale  of  by  executors,  etc 186 

notice  of  petition  for  leave  to  sell,  what  to  be  given 186 

CONTRACTS, 

in  writing,  for  sale  of  land,  specific  performance  of       448 

CONCEALMENT, 

fraudulent,  of  estate  of  deceased  person  or  ward,  proceedings  for 

discovery 14,  175 

of  will,  proceedings  for  discovery 92 

CONFIRMATION, 

of  defective  acts,  etc  ,  of  probate  courts  and  of  certain  acts  of 

executors,  etc 100,  459 

CONSERVATORS  OF  PROPERTY  OF  AGED  PERSONS, 

appointment  of 143 

bond  of 143 

discharge  of       143 

nonresident,  to  appoint  agents  in  this  commonwealth        ....  143 

CONTRIBUTION   AMONG   DEVISEES   AND   LEGATEES, 

child  or  issue  of  child  omitted  in  will,  liable  to,  when 461 

estate  of  devisee  taken  for  payment  of  debts,  loss  how  borne     .     .  461 

estate  of  devisee  taken  for  widow's  dower,  loss  how  borne    .      406,  462 

posthumous  child,  when  to  make 461 

executors  and   administrators   of   deceased    devisee    or    legatee, 

liable  for 462 

exemption  from,  by  specific  devise  or  bequest 461 

by  provisions  of  will 462 

insolvency  of  person  liable  to,  loss  occasioned  by,  how  borne    .     .  461 

when  to  be  made  to  child  omitted  in  will 352,  460 

to  posthumous  child 460 


INDEX.  761 

CORPORATION  STOCK,  page 

liability  of  executor,  etc.,  for 502 

right  of  voting  on 502 

COSTS, 

may  be  awarded  in  contested  cases  in  discretion  of  court      ...       15 

general  rules  as  to  allowance  of 15,  note 

of  suit,  paid  by  executor,  etc,  allowed  in  his  account,  unless       300,  301 
of  executors  and  trustees  in  suits  for  instructions  as  to  will  .       16,  note 
of  executor  in  sustaining  proof  of  will,  to   be  paid  by  special 
administrator 16,  note 

COURTS, 

police,. district  and  municipal  may  issue  writs  ofscire/acias  against 

administrators,  etc 206 

CREDITOR, 

entitled  to  administer,  when 107,  113 

may  complain  in  cases  of  embezzlement,  etc.,  of  estate  of  deceased 

person  or  ward 175 

may  be  witness  in  support  of  petition  to  sell  lands  to  pay  debts      .  249 
not    to    bring  action   against  executors,   etc.,   after   two   years, 

except 195 

not    to    bring    action    against  executor,   etc.,   within   one  year, 

except 203,212 

proceedings  by,  when  right  of  action  accrues  after  two  years      199,  200 

when  may  appeal  from  decree  of  probate  court 467,  note 

of  insolvent  estates, 

allowed  six  months  to  prove  claim 216 

and  further  time  by  leave  of  court 216 

claim   of,  if  not  presented  to  commissioners,  barred,  unless 

new  iissets 234 

claim  of,  not  barred  by  lapse  of  time,  when  new  assets  .     .     .  235 

having  contingent  claim,  how  may  proceed 224 

if  assets  sufficient,  to  be  paid  ia  full 235 

otherwise,  to  be  paid  ratably 231 

if   secured,  must   waive   security   or   prove  only  balance  of 

claim 221 

of  deceased  copartner,  may  prove  claim 220 

of  deceased  foreigners,  claims  how  paid 236 

may  appeal 226 

may  cause  commission  to  be  reopened,  wiien  new  assets     .     .  235 

may  submit  claim  to  arbitration,  if  appeal  waived      ....  228 
may  sue  after  eighteen  months,  if  question  of  insolvency  not 

then  determined 2-36 

not    to    bring    actions    after    representation    of   insolvency, 

except 233 

preferred,  paid  in  full 231 


762  INDEX. 

CREDITOR  (continued).  pagb 

preferred,  who  is 211 

remedy  of,  when  appeal  not  taken  in  time 228 

required  to  refund  money  paid  by  executor,  etc.,  when      213,  note 

to  prove  claim  before  commissioners,  or  tlie  court      ....  216 

unclaimed  dividends,  when  divided  among 233 

unmatured  claims  of,  may  be  proved 220 

CURTESY,  ESTATE  OF, 

conveyance  free  from,  when 269 

husband's,  at  common  law,  abolislied 327 

established  by  Revised  Laws 326 

must  be  claimed 326 

release  of,  by  guardian  of  insane  married  man  ....      268,  456 

waste  by  tenant,  ground  for  forfeiture 406 


D. 

DAMAGES, 

administrator,  etc.,  not  liable  to  exemplary 205,  495 

DEATH, 

of  absent  person  presumed  after  seven  years 118,357 

of  several  persons,  by  same  calamity,  presumed  to  be  simultaneous    358- 

DEBTS, 

of  deceased  set  off  in  action  by  administrator  or  executor     .     .     .  205 

due  from  heir  to  be  set  off  against  distributive  share 359 

due  from  legatee  to  be  set  off  against  legacy 207 

lands  liable  for 243,  note 

outstanding,  when  may  be  sold  by  executors,  etc 185 

proceedings  in  such  case 185 

DECLARATIONS   OF   TESTATOR, 

admissible  to  show  his  mental  condition 55 

as  to  manner  of  disposing  of  his  estate 54 

as  to  revocation  of  will 62,  63,  note 

when  made  near  time  of  making  will 49 

subsequent,  not  admissible  to  prove  intoxication  at  time  of  execut- 
ing will 53 

or  that  undue  influence  was  used 58 

DECREES, 

allowing  accounts  conclusive,  except,  when      ....      313,  note,  315 
allowing  will  or  adjudicating  intestacy,  conclusive  when   .     .       29,  note 

conclusive,  unless  appealed  from 5 

conclusive  as  to  purchasers  for  value,  when      .     .     .   29,  note,  119,  note 

enforcement  of 12 

entry,  if  transaction  out  of  court 11 


INDEX.  76 


o 


DECREES   (continued).  paqb 

in  equity,  no  stay  or  suspension  pending  appeal  without  special 

order 472,  note 

form  of 7 

outside  of  county,  may  be  made 21 

revocation  of 12,  note 

writmg,  to  be  m  and  recorded 12 

DEPOSIT   OF   MONEY  OF  ESTATE, 

how  authorized 13,  14 

limitation  of  amount  to  be  received  by  savings  banks,  etc.,  not 

applicable  to        368 

payment  of,  unclaimed  for  five  years,  to  state  treasurer,  when  .     .     368 

DESCENT   OF   REAL   ESTATE, 

adopted  ciiild,  rights  of 482 

IS  "issue  "  within  R.  L.  c.  140,  §  8 483,  note 

definition  of,  under  Revised  Laws 320 

deceased  non-residents 341,  353 

devisee  or  legatee  dying  in  testator's  lifetime,  issue  of,  to  take 

deceased's  share,  unless       352 

general  rules  of,  uuder  Revised  Laws 320-322 

homestead  estates  of  widows  and  minor  children 338 

*       illegitimate  children 341 

husband,  action   by,  for  recovery  of  interest  in   deceased  wife's 

estate,  not  to  be  brought  after  twenty  years  from  her  decease     332 
rights  of,  in  wife's  property  under  Public  Statutes  .      322-324,  326 

under  Revised  Laws 326,  334 

cemeteries,  lots  in 332-334 

curtesy,  assignment  of 327 

at  common  law  abolished,  except 327,  334 

claim  for,  necessary,  and  when  to  be  made 326 

none  in  land  mortgaged  by  wife  to  obtain  whole  or  part 

of  purchase  money 327 

tenancy  by  the 326,  334 

share  of,  if  wife  dies  intestate        329,  330 

summary  of   changes  made   by  Revised   Laws,  as  to  rights 

of,  in  wife's:  property 334-386 

waiver  by,  of  wife's  will,  when  to  be  made  and  effect  of      330,  331 

kindred,  how  computed 348 

half  blood  inherit  equally  with  whole  blood      .      330,  note,  349 

next  of  kin,  how  ascertained 347 

"  lieirs  at  law  "  mean,  when 349,  note 

omission  by  testator  to  provide  in  will  for  child  or  issue  of  deceased 

child,  effect  of 349 

burden  of  proof  on  party  opposing  child's  claim  to  show  inten- 
tional        351 


764  INDEX. 

DESCENT  OF    KEAL   ESTATE  (conUnued).  pa^e 

evidence  of  intentional        350,  351,  and  notes 

share  of  child  in  case  of  unintentional 351 

posthumous  child,  sliai^  of 352 

rules  of,  general,  under  Revised  Laws '3'20-?>'^2 

settlement  of  estates  of  deceased  non-residents 341,  353 

what  real  estate  descends 820 

wife,  action   by,  for  recovery  of  interest  in  deceased   husband's 

estate,  not  to  te  brought  after  twenty  years        332 

rights  of,  in  husband's  property  under  Public  Statutes       .     .      324-326 

under  Revised  Laws 326-329,  336 

allowances  to,  as  necessaries 323 

real  estate  to  be  sold  to  pay,  when 329 

cemeteries,  lots  in 332-334 

dower,  assignment  of 327 

claim  for  necessary,  and  when  to  be  made 327 

entitled  to  against  all  but  mortgages,  etc.,  although  released 

in  mortgage,  when 328 

none  in  wild  land,  except 328 

husband's  house,  may  occupy  for  six  months  rent  free      ....     328 

share  of,  if  husband  dies  intestate 329,  330 

summary  of  changes  by  Revised  Laws  as  to  rights  of,  in  husband's 

propertj' 336-338 

waiver  by,  of  husband's  will,  when  to  be  made  and  effect  of      .     .     331 
DEVISE, 

to  attesting  witness  to  will  void,  unless 40 

DEVISEES   AND  LEGATEES, 

contribution  among 352,  460 

dying  in  life-time  of  testator,  issue  of  to  take  share  of  deceased, 

unless 352 

liable  to  suit,  when 202 

refund  of  collateral  inheritance  tax  to,  when    .  204,  note,  356,  note,  521 
DIPSOMANIACS, 

commitment  of 8,  note,  492,  493 

DISCOVERY, 

of  facts  and  documents,  interrogatories  for 14 

proceedings  for,  in  case  of  concealment  of  will 92 

embezzlement,   etc.,   of  property   of    deceased   persons   and 

wards 14,  15,  175 

DISTRIBUTION, 

advancements  of  real  and  personal  property 360 

evidence  of 361 

method  of  distribution,  in  case  of 363 

questions  concerning,  how  determined 361 

value  of 363 


INDEX.  765 

DISTRIBUTION   {continued).  page 

widow's  share,  in  case  of 363 

anioug  class,  of  legacy  under  will,  how  made 359 

balances  in  hands  of  public  administrators 368 

collateral  inheritance  tax,  payable  on       ...  204,  note,  358,  note,  517 

debts  due  from  heir  or  distributee  to  be  set  off  or  deducted  .     .     .  359 

decree  for,  and  effect  of 354 

form  of 356 

perpetuation  of  evidence  of  payments  to  under 363 

persons  to  be  included  in,  how  determined 357,  358 

presumption  of  death,  wlien 357 

no  presumption  of  marriage  or  issue 357 

final  discharge  of  executor,  etc.,  on 365 

final,  of  money  deposited  or  invested  by  order  of  court     ....  369 

foreign  guardians  and  trustees,  payments  to 372 

partial,  when 359 

petition  for  decree  of 355 

notice  of 355 

time  for  making 258 

DISTRICT   COURT, 

may  issue  scire  facias  against  administrators,  etc 206 

DOWER, 

assignment  of 327,  397-427 

barred,  how 400,  408 

claim  of,  how  and  when  to  be  made 327,  397,  408 

commissioners,  appointment  of,  to  assign 411 

appraisal  by 412 

assignment  by  metes  and  bounds,  except 413 

dwelhng-house 414 

mill,  etc 413 

notice  to  be  given  by,  except 412 

oath  of 412 

return  of,  form,  etc 414 

citation  on 415 

confirmation  and  record  of 415 

conveyance  free  from,  when 269,  401 

divorce,  effect  of,  on 400 

estate  of,  at  common  law 398 

marriage,  seisin  of  husband  during  coverture,  and  death  of 

husband,  necessary  to  establish  claim  to 399 

lands,  what  subject  to 397,  401-406 

held  in  common 402 

leased  for  long  term 405 

mines  and  quarries 402 

mortgages,  except  as  to  mortgagee,  etc 403 


766  INDEX. 

DOWER  {continued).  paoe 
taken  on  execution  against  husband  or  his  executor  or  admin- 
istrator     406 

wild  lands,  not,  except 401 

limitation  of  claim  or  suit   by   widow   for,   and   for   interest  in 

realty 332,410 

petition  for  assignment  of,  or  of  other  interest,  form  of,  etc.  .     .     .    410 

citation  on,  issue  and  service  of 411 

description  of  land,  when  necessary       .    .  " 411 

present  value  of  estates  of       419 

tables  showing 420,  421 

proceedings  for  assignment  of 410-416 

proceeds  of  release  of,  reserved  for  wife,  when 400 

tables  sliowing  present  value  of 420,421 

value,  present  of  estates  of 419,420,421 

waiver  by  widow  of  provisions  of  will 406 

widow,  assignment  of  her  undivided  life  interest  other  than  dower  .     42(3 

endowed  anew,  after  eviction,  when 415 

writ  of,  and  proceedings  under 410-419 


E. 
EMBEZZLEMENT, 

of  property  of  deceased  persons  or  wards 175 

proceedings  for  discovery 14, 175 

punishment  for 502 

EQUITY, 

jurisdiction  of  probate  court,  in 9, 157, 158 

ESTATE   BY   THE   CURTESY.     (See  Curtesy,  Estate  of.) 

ESTATE   IN   LIEU   OF   DOWER.     (See  Dower.) 

EVIDENCE, 

of  declarations  of  testator,  how  far  admissible      .     .     .     .49,  55,  58,  62 

of  handwriting  of  attesting  witness,  when  admissible 73 

of  "  mark  "  of  attesting  witness       74 

parol,  admissible,  of  testator's  intentional  omission  to  provide  for 

child 350,351 

on  questions  of  testator's  sanity 46-55 

perpetuation  of,  that  executor,  etc.,  gave  notice  of  appointment    .     193 

notice  of  time  and  place  of  sale  of  lands 255 

of  delivery  of  property  by  administrator,  etc.,  under  decree  .     316,  note 

of  payments  under  order  of  distribution 232,233,366 

presumption  as  to  attestation  of  witnesses  to  will 36 

of  death  of  absent  person 118,  357 

of  testator's  intention  to  revoke  will 63 


INDEX.  767 

EVIDENCE  {continued).  page 

of  testator's  knowledge  of  contents  of  will .      35 

of  testator's  sanity .      46 

EXECUTION, 

for  costs,  may  be  issued  by  probate  court 15,  16 

Land  held  on,  by  executor,  etc.,  deemed  personal  estate    ....     245 
may  be  sold,  before  foreclosure  of  rigiitof  redemption,  in  same 

manner  as  personal  property .  .     245 

if  not  sold  or  redeemed,  to  be  distributed  as  personal  estate  320,  note 

EXECUTOR. 

account.     (See  Accounts.) 

{Actions  hij  or  against.) 

actions  against,  barred  wlien  estate  exhausted  by  payments  before 

notice  of  claim,  and  by  payment  of  preferred  claims    203,  204, 

212,214 

costs  in 497 

death  or  removal  of  executor,  etc  ,  pending,  proceedings  on  .  .  498 
death  or  removal  of  executor,  etc.,  after  judgment,  proceedings  on  4'J9 
executions  in,  except  for  costs  only,  run  against  goods  and  estate 

of  deceased  in  hands  of  executor,  etc 497 

not  held  to  answer  to,  commenced  within  one  year  from  appoint- 
ment, unless 203 

proceedings  in,  when  creditor's  right  of  action  accrues  after  two 

years 203 

replevin  or  tort  for  goods  detained,  property  or  money  recov- 
ered in  not  assets  in  hands  of  executor,  etc 497 

scire  facias,  when  issued  in •    .     .     .     .  498,  499,  500 

set-off,  right  of,  in 205 

survival  of 494,  note 

actions  which  do  not  survive 495,  note 

tort,  liability  of  executor  or  administrator  in 205,  495 

trustee  process  in,  what  subject  to  attachment  by 499 

death  of  person  summoned  as  trustee  in  his  own  right,  pro- 
ceedings on 500 

execution  against  executor,  etc.,  as  trustee,  runs  against  goods 

or  estate  of  deceased  on  his  hands 501 

remedy  by  suit  on  bond  of  executor,  etc.,  adjudged  trustee,  when  501 
writs  of  attachment  or  execution  in,  run  against  goods  or  estate 

'    in  hands  of  executor,  etc 497 

writs  of  sc(Ve/«cuts,  when  issued 498,499,500 

affidavit  of  notice  of  appointment  of 193 

appointment  of 94 

irregularity  in,  effect  of 99,  100 

bond  to  be  given  by 96 

exemption  from  giving  sureties  on,  when 99 


763  INDEX. 

EXECUTOR  {continued).  paob 

bond  when  executor  is  residuary  legatee 97 

collection  of  the  effects  by 174 

collateral  legacies  and  successions,  taxes  on  to  be  paid  by    .    204,  note, 

208,  note 
complaints  by  or  against  for  fraudulent  concealment,  etc.,  of  prop- 
erty of  the  estate    175 

corporation  stock,  liability  of  executor,  etc.,  for 502 

right  of  voting  on 502 

delivery  of  property  by,  to  successor,  enforcement  of  .     .     .     .13,  105 
inventory  to  be  returned  by,  within  three  months  after  appoint- 
ment, except  when  executor  has  given  bond  as  residuary 

legatee 168,  169 

vehat  to  include  and  by  whom  made 167-173 

legacies, 

deposit  of 206,  note 

payment  of 206 

set-off  against,  of  debts  due  from  legatee 207 

liability  of,  for  loss  resulting  from  his  unreasonable  delay  or  neglect     176 

liability  of,  under  license  for  sale  of  real  estate 260,  261 

married  woman  may  be  execiutrix 95 

minor  cannot  be 95 

mortgage  of  real  estate  by,  how  authorized 272 

notice  of  appointment  of,  to  be  given 192 

proof  of  giving,  by  affidavit 193 

release  by,  of  certain  vested,  contingent,  or  possible  interests  in 

real  property,  when  authorized 272 

removal  and  resignation  of 159-166 

decrees  making  removal,  effective,  pending  appeal,  unless  .     .     106 

grounds  for  removal 159,  160,  162 

conflict  of  interest 159 

insanity  or  incapacity 159 

neglect  to  furnish  bonds,  sureties,  or  to  render  account  when 

required 162 

removal  from  State  and  failure  to  appoint  agent  here 162 

unfaithful  administration 162, 230 

non-resident,  to  appoint  agent  in  this  Commonwealth    ....   95,  1U4 

removal  of,  petition  for 163 

notice  of  petition  to  be  given 164 

right  of,  to  vote  at  corporation  meetings 502 

sale  of  outstanding  debts  and  claims  by,  when  authorized     .     .     .     185 

of  personal  property 184 

sale  of  personal  property,  by  foreign 186 

sale  of  lots  in  cemeteries  by,  and  by  administrators 277 

sale  of  real  estate  by,  and  by  administrator .........  239-262 

adjournment  of 256 


INDEX.  769 

EXECUTOR    (continued).  paok 

affidavit  of  notice  of 255  and  note 

deed  under  license  for,  form,  etc 260 

executor  or  administrator  not  to  be  purchaser  at   .     .     .      256,  257 

foreign  executors  and  administrators     • 262 

license  for,  granted  to  pay  debts  and  legacies     ....      239,  242 

continues  in  force  for  one  year  only 253 

granted  to  administrator  on  consent  of  all  parties  interested, 

unless  real  estate  exceeds  $1,500  in  value 241 

granted  for  payment  of  tax  on  collateral  legacies  and   suc- 
cessions    242, 243 

must  coucur  with  petition ;     .     .     .     .     251 

not  granted  to  executor  who  has  given  bond  as  residuary  legatee    242 
not  granted  when  the  only  debt  is  secured  by  mortgage  .     240,  note 

not  ordinarily  granted  after  two  years 252 

not  granted  when  parties  interested  pay  executor  or  adminis- 
trator amount  needed  to  pay  claims  against  estate  ....     249 

notice  to  parties  interested  of  petition  for 248 

when  dispensed  with 248 

petition  for,  form,  etc 245 

hearings  on,  adjudication  of  probate  court  as  to  existence 

of  debts  and  charges,  final 249 

what  real  estate  maj-  be  sold  under 243-245 

■will,  provisions  of,  as  affecting 247 

marshalling  assets  for  pajnnent  of  debts,  as  affecting 252 

necessit}'  of,  to  be  shown 248 

notice  of  time  and  place  of 254 

proof  of  giving 255 

proceedings  when  affidavit  of,  has  not  been  filed 255 

proceeds  of,  balance  remaining  on  settlement  of  account  of 
executor,  administrator,  or  guardian  to  be  considered  as  real 

estate  and  distributed  accordingly 261 

to  be  by  public  auction,  unless  authorized  to  be  by  private 

sale 250,  251,  256 

purchaser  at,  protected  against  certain  irregularities  .    .     .  257-259 

registered  land 492 

statute  requirements  as  to 258 

of  whole  or  part  of  real  estate,  when  authorized 250,  251 

scire  facias,  writs  of,  when  may  issue  against 206,  444 

temporary  investment  by,  how  authorized 190 

who  may  be 95 

EXEMPLARY  DAMAGES,* 

administrators  and  executors  not  liable  to 205,  495 

EXPERTS, 

evidence  of,  on  questions  of  sanity 47,  48 

49 


770  INDEX. 


F. 

FATHER,  FAOB 

administration,  entitled  to,  when 110 

custody  of  his  child,  entitled  to,  although  other  person  is  guardian  .  128 

estate  of  child  descends  to,  and  to  mother 321 

may  appoint  by  will  guardians  for  his  cliildren 131 

may  not  appoint  bv  will  guardians  for  other  children,  though  he 

gives  them  his  property 131 

rights  of,  how  affected  by  adoption  of  children 482 

FEEBLE-MINDED, 

commitment  of 8,  note 

FOREIGN  EXECUTORS  AND    ADMINISTRATORS. 

(See  Non-Resident  Executors  and  Administrators.) 

FOREIGN   GUARDIANS.     (See  Non-Resident  Guardian.) 

FOREIGN    TRUSTEES.     (See  Non-Resident  Trustees.) 

FORMS,   PROBATE.     (See  Lidex  to  Probate  Forms.) 

authority  to  prescribe 10,  11 

FRAUD, 

will  obtained  by,  void 55,  56 

FRAUDULENT   CONCEALMENT, 

of  estate  of  deceased  persons  and   wards,  proceedings  for  dis- 
covery     14,  175 

FRENCH   SPOLIATION  AWARDS, 

bond  required  of  administrators  of,  condition  of 446,  447 

jurisdiction  of  probate  court  as  to      ......    8,  note,  9,  446,  447 

"FULL  AGE," 

when  attained 31,  note 


G. 

GRANDCHILDREN, 

when  entitled  to  administer  as  next  of  kin 109 

when  inherit 347 

GRANDPARENTS, 

when  entitled  to  administer  as  next  of  kin 109 

when  inherit 347 

GUARDIAN, 

account.     (See  Accounts.) 

administrator  of  estate  not  to  be,  of  heir  of  same  estate    ....     1.31 

appointment  of r26-14.'> 

bond  of 140 


INDEX.  771 

GUARDIAN  {continued).  page 

exempt  from  giving  surety,  when 142 

complaint  by  or  against,  for  fraudulent  concealment  of  ward's 

property 175 

delivery  of  property  by,  to  successor,  enforcement  of   ....  13,165 

discharge  of 137 

domestic  trust  company  may  be 129 

of  insane  persons 133-137 

proceedings  on  petition  for  appointment  of 133-136 

release  by,  of  curtesy,  dower,  or  homestead  ....  186,  137,  457 
reservation   for  insane  person   of  portion   of   proceeds, 

when 137,  268,  401,  458 

inventory  to  be  returned  when  directed  by  court 169 

what  to  include  and  by  whom  made 171-173 

marriage  of  female  under  guardianship  deprives  guardian  of  right 

to  her  custody  and  education       166 

of  married  women 139 

release  by,  of  ward's  dower  or  homestead  estate     .    .     .      140,  260 

of  minors 126 

minor  over  fourteen  years  of  age,  right  to  nominate  ....  127 
power  and  duties  of  guardian  of  minors  .  .  128,  note,  127-129,  263-265 
natural,  father  and  mother,  and  equally  entitled  to  custody  and 

care  of  minor  cliild 126,  note 

natural,  has  ordinarily  custody  of  child 127,  128,  note 

non-resident,  to  appoint  agent  resident  here 194 

of  persons  out  of  the  state 138 

petition  for  appointment  of 131 

for  removal  of < .     .     .     163 

notice  of,  to  be  given 164 

purchase  of  interests  in   ward's  real  estate,  may  be  authorized  to 

make 451 

release  by,  of  certain  vested,  contingent,  or  possible  interests   in 

real  property,  when  authorized 272 

of  damages  for  land  taken  by  railway  companies 502 

removal  and  resignation  of 159-166 

decrees  making  removals,  effective,  pending  appeal,  unless     .     166 

grounds  for  removal 159,  161,  162 

conflict  of  interest 159 

incapacity  or  insanity 159 

neglect  to  furnish  bond  when  required 159 

unfaitlifiil  administration 162 

unsuitability 161 

sale  and  investment  of  personal  property  by 187 

sale  of  real  estate  by 263-270 

agreement  with  wife  of  insane  ward  as  to  her  release  of  dower 
and  homestead,  upon 267 


772  INDEX. 

GUARDIAN  (continued).  paob 

homestead 264 

of  minors,  for  maintenance  or  investment 264,  '^^65 

for  payment  of  debts  and  charges 263 

by  foreign 270 

of  wood,  standing  or  growing 264 

private  sale,  wiien  authorized 270 

public  sale,  unless  private  authorized 264,  note 

of  whole  or  part,  may  be  authorized 263 

license  for,  notice  of  petition  for  to  be  given 265 

notice  of  petition,  what  to  be  given  in  case  of  insane  person 

or  spendthrift 266 

petition  for,  form,  etc 263,  264,  265 

notice  of  time  and  place  of,  what  to  be  given 266 

proceeds  of,  how  to  be  applied  or  invested 266,  267 

of  spendthrifts 133-136 

proceedings  on  petition  for  appointment  of   .     .     .     134,  134,  note, 

135,  136 

temporary 133 

testamentary '     131 

bond  of 141 

exempt  from  giving  sureties,  when 141 

who  are  suitable  to  be 129-131 

GUARDIAN  AD  LITEM, 

appointed  when 313,  314,  382,  481,  482 

GUARDIANSHIP, 

support  of  minor  children  under  454 


H. 

HABEAS  CORPUS, 

when  probate  court  may  issue  writs  of 462 

HANDWRITING, 

of  attesting  witness  to  will,  when  may  be  proved 73 

HEIRS, 

who  to  be,  of  intestate  property 321,  347,  348 

HOMESTEAD, 

estates  of 421 

partition  may  be  made  of 377,  424 

released,  how 423 

right  of,  of  insolvent  persons 425 

sale  of,  by  guardian,  when  by  widow,  when 424 

HUSBAND, 

action  by,  for  recovery  of  interest  in  deceased  wife's  estate,  not 
to  be  brought  after  twenty  years  from  her  decease 332 


INDEX.  773 

HUSBAND   (continued).  pase 

to  administer  wife's  estate,  unless 107 

may  be  prohibited  from  imposing  restraint  on  personal  liberty  of 

wife 452 

paying  funeral  expenses  of  wife,  may   recover  them   from   her 

executor 211,  note 

rights  of  in  wife's  property 

under  Public  Statutes 322-326 

under  Revised  Laws 326-336 

summary  of  changes  made  by  Revised  Laws  as  to  rights  of,  in 

wife's  property 334-336 

support  of  wife  living  apart  from,  for  justifiable  cause      ....    452 
waiver  by,  of  wife's  will,  when  to  be  made  and  effect  of  .    .      330,  331 


I. 

ILLEGITIMATE  CHILD, 

heir  of  mother  and  of  any  maternal  ancestor 341 

intermarriage  of  parents  and  acknowledgment  by  father,  renders 

legitimate 341 

mother  of,  natural  guardian 126,  note 

mother  of,  to  be  heir  of 341 

omitted  in  parent's  will,  not  to  share  in  his  estate 351 

INFANTS, 

cannot  administer 95,  112 

cannot  dispose  of  property  by  will 31 

full  age,  when  attained  by 31,  note 

INHERITANCE, 

by  "  right  of  representation,"  how  construed 346,  347 

INSANE   PERSONS, 

appointment  of  guardian  for 133-138 

commitment  of 8,  note,  492,  493 

privileges  and  discharge  of,  after  commitment 503 

release  and  sale  of  property  or  rights  of.     (See  Guardian.) 
trustee  may,  in  certain  cases,  convey  real  estate  free  from  all  right 
of  curtesy  or  dower  of 269 

INSANITY, 

attesting  witnesses  to  will,  may  give  opinion  as  to,  of  testator  .     .      47 

contents  of  will,  etc.,  admissible  as  to 49 

eccentricity  distinguished  from 50 

evidence  on  tlie  question  of 47 

experts,  testimony  of,  as  to 47,  48 

fact  of  guardianship  as  evidence  of 49 

hereditary 49,  50 

induced  by  what  diseases 52 


774  INDEX. 

INSANITY   {continued).  paob 

intemperance 53 

life,  opinions,  and  habits  of  testator  reviewed,  to  test  allegations 

of       51 

lucid  intervals 53 

partial  —  monomania 54 

suicide  as  evidence  of 48 

INSOLVENT   DEBTORS, 

rights  of  homestead 425 

INSOLVENT  ESTATES   OF   DECEASED   PERSONS, 

actions  against,  by  creditors,  after  representation  of  insolvency     .  233 

claims  against,  contingent,  provisions  as  to 224 

interest  on,  how  computed 222 

order  of  preference  in  payment  of 211,  231 

proof  of 218 

extension  of  time  for  proof  of 216 

not  provable  unless  suit  brought  or  presentation  to  commis- 
sioners or  court  for  allowance  within  two  years  after  bond 

given  by  administrator 217,  218,  note 

not  proved  before  commissioners  or  court,  barred  except  as 

to  new  assets 234 

secured,  not  provable  until  security  surrendered  or  its  value 

deducted 221 

time  allowed  for  proof  of 216 

vFhat  are  provable 220  and  note,  221,  222,  and  notes 

commissioners,  appeals  from  decisions  of,  or  of  probate  court    .     .  226 

allowance  of  and  effect 228 

claim,  entry,  and  notice  of 226 

statement  of  claim  to  be  filed        227 

■waiver  of  and  arbitration, 228 

commissioners,  appointment  of  to  examine  claims  against    .     .     .  215 
creditors,  list  of,  to  be  furnished  to  by  executor  or  adminis- 
trator    218 

examination  of  claimants  by 219 

return  of 223  and  note 

creditors,  proof  by  of  claims  against 215-226 

secured,  to  surrender  or  deduct  value  of  security  before  prov- 
ing claim 221 

when  required  to  refund  payment 213 

deposit  of  unclaimed  dividends  on 232  and  note 

distribution  of 229 

decree  or  order  directing  form  of,  etc 232 

evidence  of  payments  under  decree  of,  how  perpetuated     .     .  229 
final,  not   made  until  settlement  of  accounts  of  executor  or 

administrator 230 


INDEX.  775 

INSOLVENT   ESTATES,  ETC.  (continued).  paoe 

priority  of  payment  in  making 231 

dividen<ls,  unclaimed,  to  be  deposited 232  and  note 

on  deposit,  payment  of 232,  note 

after  twenty  years,  to  be  distributed 233 

insolvency,  representation  of 212 

when  to  be  made 214 

where  and  how  to  bo  made 215 

of  non-residents,  provisions  as  to 235 

INTEREST, 

executors  and  administrators  chargeable  with,  when 292 

with  compound,  when 293 

guardians  and  trustees  chargeable  with,  when 306 

with  compound,  when 307 

how  computed  on  legacies .  209 

on  claims  against  insolvent  estates 222 

on  claim  of  executor,  etc.,  against  estate  of  deceased 304 

on  money  advanced,  when  allowed  to  executors,  etc 300 

INTERROGATORIES, 

may  be  filed  to  be  answered  by  adverse  party  as  in  civil  actions   .  14 

INTOXICATION, 

will  made  by  person  in  state  of 53 

INVENTORY, 

appraisers,  may  be  appointed  by  court 172 

may  be  appointed  by  justice  of  the  peace,  when  estate  is  in 

his  county 173 

appointment  of,  may  be  revoked 12 

must  first  be  sworn 173 

person  employed  in  probate  office  not  to  be 172 

to  deliver  inventory  to  executor,  etc 174 

by  executors  and  administrators,  to  be  returned  in  three  months 

after  appointment 169 

by  guardians  and  trustees,  when  ordered  by  the  court       ....  169 

by  special  administrators,  when  ordered  by  the  court 121 

copy  of,  of  estate  subject  to  succession  tax,  to  be  sent  by  register 

to  state  treasurer 17,  519 

not  required  of  executors  who  have  given  bond  to  pay  debts  and 

legacies 169 

nor  of  trustees,  when  court  deems  it  unnecessary 169 

objects  of 171 

of  estate  subject  to  succession  tax,  to  be  filed  under  penalty        169,  518 
of  partnership  and  individual  estate,  to  be  returned  on  separate 

schedules 173 

of  wards  having  same  guardian,  when  to  be  separate  schedules     .  173 


776  INDEX. 

INVENTORY  {contmued).  paob 

to  be  sworn  to  by  executor,  etc 174 

what  to  be  included  in 171 

INVESTMENT, 

of  personal  property,  in  hands  of  guardians  and  trustees,  by  order 

of  court 187 

proceedings  in  such  cases 187 

sale  of  real  estate  for 264 

temporary,  by  executors  and  administrators 13,  190,  191 


J. 

JOINTURE, 

to  bar  dower,  what  must  consist  of  and  when  to  take  effect .     .     .  408 

wife's  assent  to,  how  expressed 409 

when  may  be  waived  and  dower  claimed 409 

widow  evicted  from  land  held  as,  may  be  endowed  anew       .     .     .  415 
widow's  undivided  interest  under,  may  be  set  off,  when     .     .      339,  411 
JUDGES   OF  PROBATE, 

appointment  of  probate  court  officers  by,  in  Suffolk  and  Middle- 
sex counties 493 

assignment  of  one  judge  to  perform  duties  of  another,  when      .     .  19 

assistant  registers  of  probate,  appointed  by,  for  certain  counties    .  23 

complaint  against  master,  apprentice,  or  servant,  jurisdiction  of,  by  492 

compensation  of  judge  when  performing  duties  of  another     ...  20 

contempt,  may  punish  for 26 

decrees  of,  to  be  in  writing  and  recorded 12 

deposit  or  investment  in  name  of 18 

dipsomaniacs,  commitment  of,  by 492 

disqualifications  of  to  act,  when       19,  20,  notes 

inebriates,  commitment  of,  by 492 

insane  persons,  commitment  of,  by 492 

interchange  of  duties  by 18 

judge  may  act  outside  of  his  county 21 

may  be  appointed,  in  another  countj',  guardian  of  liis  minor 

child 26 

juvenile  offenders,  commitment  of,  by 491 

marriage  of  minors,  may  authorize 8,  note 

may  transact  business  out  of  court,  when 21 

not  to  act  as  counsel  or  attorney 26 

not  to  hold  certain  trusts  or  to  be  interested  in  fees  or  emolu- 
ments   25,  26 

shall  be  a  member  of  board  of  examiners 491 

number  of 17 

oath,  authority  of  to  administer 13 


INDEX.  777 

JUDGES   OF    PROBATE  (continued).  page 

oaths  to  be  taken  by       17 

probate  officers  in  Middlesex  and  Suffolk  counties,  appointment  of  493 

rules  and  forms,  to  be  made  and  prescribed  by 10 

temporary  register,  may  appoint 25 

JURISDICTION.     {See  Probate  Courts.) 

JUSTICE  OF  THE   PEACE, 

may  administer  oaths  required  in  probate  proceedings      ....  13 
may  appoint  appraisers,  when  estate   to   be   appraised  is  in  his 

county i    ...  173 

may  summon  witnesses 73 

JUVENILE   OFFENDERS, 

probate  court  has  jurisdiction  to  commit,  except      .    .    .     8,  note,  941 


K. 

KINDRED, 

collateral 109 

degrees  of,  computed  according  to  rules  of  civil  law 108 

lineal 109 

of  half  blood,  to  inherit  equally  with  those  of  whole  blood    .     .     .  349 

what,  to  inherit  estates 347,  348 


L. 

LEGACIES, 

agreements  to  give 88 

deposit  of,  when 206,  note 

interest  on 209 

issue  of  legatee  to  take,  when 352 

payment  of 206 

recoverable  in  action  at  law,  when 200 

set  off  against,  of  debts  due  from  legatee 207 

LOST   WILLS, 

admitted  to  probate  if  fact  of  loss  and  contents  proved       ...      79,  80 

presumed  to  have  been  revoked 79 

proof  of  contents  of 80,  note 

LUCID   INTERVAL, 

evidence  of 53,  54 

wills  made  in,  valid 53 

LUNATIC.     (See  Insane  Person.  —  Insamtij.) 


778  INDEX. 


M. 

MARINERS   AT   SEA,  pagb 

may  make  nuncupative  will 83 

nuncupative  will  of,  how  made 85 

how  proved 86 

who  are,  within  the  statute 86 

MARK, 

how  identified 74 

will  sufficiently  signed  by 32 

MARRIAGE, 

of  absent  heir,  not  presumed 357 

of  parents  of  illegitimate  children,  effect  of 341 

works  revocation  of  will 68 

MARRIED    WOMAN, 

dower  and  homestead  of  minor,  may  be  released  by  her  joining 

in  conveyance  by  husband 400,  456 

insane,  appointment  of  guardians  for 133,  140 

dower  and  homestead  of,  may  be  released  how 456 

living  apart  from  husband  for  justifiable  cause,  may  have  order 
proiiibiting  him  from  restraining  her  personal  liberty     ....     451 

may  make  a  will 30 

mmor,  having  property,  appointment  of  guardian  for 139 

sale   and   release   of  mterest  of,  in  lands,   when  husband  under 

guardianship 136,  137,  140,  267,  209,  455 

signature   of    minor,    valid,   to   conveyance   by  husband   of   his 

land 400,  456 

support  of,  order  for,  when 451 

attachment  of  husband's  property'  on  petition  for 458 

wife  of  ward  under    guardianship  may  join  in  conveyance  with 

guardian  and  release  dower  and  homestead     ....      267,  269 
proceeds  reserved  for,  in  case  of  such  release 267 

MARSHALLING   OF   ASSETS, 

for  payment  of  debts 247,252 

MENTAL   CAPACITY   OF   TESTATOR.     (See  Will.) 

MEDICAL   WITNESS, 

when  may  testify  on  question  of  sanity 47,48 

MINORS, 

care  and  custody  of 126,  128 

care,  custody,  and  maintenance  of,  orders  concerning 452 

cannot  act  as  executor .  95 

nor  as  administrator 112 

child  of  deceased  person  entitled  to  articles  of  apparel  and  orna- 
ment        328 


INDEX.  779 

MINORS  (continued).  paob 

to  allowance  from  estate  of  father  when  there  is  no  widow     .     329 

guardian  ad  litem  may  be  appointed  for 314,  383,  481,  482 

guardians  may  be  appointed  for,  by  court 126 

by  will  of  parent 131 

marriage  of,  probate  judge  may  authorize 8,  note 

over  fourteen  years  of  age  may  nominate  guardian        127 

property  of,  may  be  sold  on  petition  of  guardian,  when     .    .      263-265 

may  be  sold  on  petition  of  friend,  when 265 

support  of,  under  guardianship 454 

MONOMANIA, 

distinguished  from  eccentricity 51,  54 

MORTGAGE, 

land   held   in,   by   executor   or   administrator,   deemed    personal 

estate       185,245 

if  not  sold  or  redeemed,  how  distributed 320,  note 

may   be   sold,  before   foreclosure,  in   same   manner   as   per- 
sonal property 245 

partition  of,  among  parties  interested 395 

of  real  estate,  by  executors  and  administrators, 272,  273 

by  guardians       273 

by  trustees       273,  274 

MOTHER, 

entitled  to  administer  as  next  of  kin,  when       110 

to  custody  of  child,  equally  with  father 128 

to  estate  of  deceased  child,  when 321 

guardian  by  nature  of  child,  if  father  not  living 126 

heir  of  illegitimate  child 341 

may  appoint  by  will  guardian  of  child,  when 131 


N. 
NAMES.     (See  Change  of  Name.) 
NEWSPAPER, 

judge  may  order  publication  in  one  other  than  that  selected  by 

parties  for  publishing  notice  or  citation 16 

parties  may  select,  for  publication  of  citation  on  their  petitions       16 

what  is  a,  for  insertion  of  legal  notices 16,  note,  192,  note 

NEXT  OF  KIN, 

how  determined 108 

liable  to  suit,  when 202 

"  heirs  at  law  "  mean,  when 349,  note 

of  adopting  parent,  may  petition  to  annul  decree   of  adoption, 
when 484,  note 


780  INDEX. 

NON   COMPOS.     {See  Insane  Person.  —  Insanitij.)  paok 

NON-RESIDENT  EXECUTORS  AND  ADMINISTRATORS, 

all  proceedings  in  court  to  be  in  county  where  appointment  is 

first  filed 271 

bond  to  be  given  by,  when 262 

copy    of   appointment   of,  to  be  filed   in  probate   court   of  any 

country  where  land  lies 262 

may  be  licensed  to  receive  and  sell  personal  property  .     .  186,  187,  520 
may  be  licensed  to  sell  land  of  deceased  in  this  state  to  pay  debts, 

etc 262 

neglect  to  appoint  resident  agent,  cause  for  removal 194 

not  entitled  to  letters  of  appointment  till  agent  appointed      .     .  95,  102 

proceedings  of,  under  license  to  sell  land 263 

resident  agent,  to  appoint  in  writing 94,  102 

NON-RESIDENT  GUARDIANS, 

all  proceedings  in  court  to  be  in  county  where  copy  of  appoint- 
ment first  filed 271 

bond  to  be  given  by,  when 271 

copy  of  appointment  of,  to  be  filed  in  what  court 270 

may  be  licensed  to  receive  and  sell  personal  property 186 

may  be  licensed  to  sell  land  of  ward  in  this  state 270 

may  remove  ward's  property  from  state,  when 139 

neglect  to  appoint  resident  agent,  cause  for  removal 194 

not  entitled  to  letters  of  appointment  till  agent  appointed      .      142,  143 

resident  agent,  to  appoint  in  writing 142 

NON-RESIDENT  TRUSTEES, 

neglect  to  appoint  resident  agent,  cause  for  removal 194 

resident  agent,  to  appoint  in  writing 154 

NOTICE, 

effect  of,  served  on  attorney 14,  27 

evidence  that  notice  was  given,  how  perpetuated 193 

newspaper  in  which  to  publish,  may  be  selected  by  parties       ...  16 
of  their  appointment,  to  be  given  by  executors  and  administrators 

within  three  months 192 

unless  so  given,  statute  of  limitations  does  not  apply      .     .     .     192 

proof  of  giving,  by  affidavit 193 

proved  otlierwise  than  by  affidavit 194,  note 

of  time  and  place  of  sale  of  lands  under  license 254 

affidavit  that  such  notice  was  given  to  be  filed  and  recorded   .     255 

effect  of  such  affidavit 255 

may  be  proved,  how,  when  affidavit  not  filed     ....      255,  2.56 

proved  otherwise  than  by  affidavit 255,  note 

publication  of,  not  essential  to  appointment  of  guardian,  when      .     131, 

note 
to  parties,  when  dispensed  with 16 


INDEX.  781 

NOTICE  {continued).  p^iob 

rules  regarding,  by  whom  to  be  made 28 

service  of,  on  attorney,  effect  of 14,  27 

NUNCUPATIVE    WILL, 

definition  of 83 

how  made 85 

how  proved 86  87 

no  particular  number  of  witnesses  necessary  to  establish  ....      86 
soldiers  in  actual  service  and  mariners  at  sea  may  make   ....      83 

wlio  are  mariners  at  sea 86 

who  are  soldiers  in  actual  service 86 


0. 

OATHS, 

by  whom  to  be  administered 13 

certificate  of,  to  be  filed 13 

may  be  required  to  be  before  judge  in  open  court 13 

of  claimants  and  witnesses,  by  commissioners  of  insolvent  estates  .     219 
OLD   AGE, 

as  affectiong  testamentary  capacity 46 

OVERSEERS   OF   THE   POOR, 

notice  to  be  given  to,  before  license  granted  to  guardian  of  insane 
persons  or  spendthrifts  to  sell  land 266 


P. 

PARENTS, 

deprived  of  legal  rights  as  to  adopted  child 482 

entitled  to  administer  as  next  of  kin,  when 110 

to   custody   of  minor   child   under  guardianship   of  another 

person,  when 128 

to  inherit  estate,  when 321 

natural  guardians  of  minor  child 126 

PARKS, 

special  trust  funds  for,  who  may  hold 152,  504 

PARTITION   OF   LAND, 

binding,  upon  whom 392 

cases  where  can  be  had 374,  note 

cases  wliere  cannot  be  had 375,  note 

commissioners,  appointment  of,  to  make •     •     383 

acts  of  majority  of,  valid,  when  all  present 385 

appraisal  by 385 

compensation  of,  how  determined 385,  note 


782  INDEX. 

PARTITION   OF   LAND    (routhmed).  pagb 

expenses  of,  how  allowed  and  paid 391 

notice  to  be  given  by 385 

oath  of 385 

order  for  payments  to  equalize  division,  when  may  make   .     .     386 

passageway,  may  assign  right  in,  when 386  note 

proceedings  of,  in  making 384 

return  of,  form  of,  etc 388 

decree  on,  and  form  of 3'Jl 

not  to  be  made  until  moneys  awarded  by  commis 
sioners  to  equalize  division  are  paid  or  secured  .     .     391 

notice  on,  unless 389 

parties  interested  may  object  to '    .     .     .     .     390 

power  of  court  to  set  aside 390 

proceedings  on 388 

sale  to  be  ordered  by,  when 387 

warrant  to,  form  of,  etc 383 

revocation  of 385,  note 

conveyances  of  undivided  interest  in  land  subject  to,  validity 

and  effect  of 393,  394 

death  of  any  party  in  suit  or  petition  for,  pending  proceedmgs, 

effect  of 384,  387 

entire  estate  held  by  petitioner,  jointly  or  in  common,  to  be  parti- 
tioned, except 378,  386 

guardian  may  petition  for,  except 378,  381 

guardian  ad  litem,  to  be  appointed  when 382 

improvements,  compensation  for,  when 379,  380 

jurisdiction  of  probate  court  to  make,  in  what  cases 374 

concurrent,  with  superior  court,  when 374 

lands  held  by  executor  or  administrator  in  mortgage  or  on  exe- 
cution     395 

may  be  made  of  lands  owned  by  husband  in  common  and  in  which 

his  widow  has  an  undivided  interest 378 

may  be  made  notwithstanding  existence  of  lease  or  homestead  or 

dower  right 377 

mortgage  of  undivided  interest  in  a  separate  parcel  of  lands  held 

in  common,  invalid  against  co-tenants  and  disregarded  in  .    393  and  note 
mortgage  of  undivided  interest  in  all  of  lands  held  in  common  valid, 
and  mortgage  lien  attaches  to  parcel  set  off  to  mortgagor    .     394  and 

note 

new,  to  be  made  after  eviction,  when 379 

no,  if  shares  uncertain  or  in  dispute 376 

person  interested  may  petition  for,  if  widow  entitled  to  undivided 
interest  does  not  within  one  year  from  husband's  death  ....     381 

petition  for,  form  of,  etc 380 

description  of  land,  when  necessary  .     .     .    .     • 380 


INDEX.  783 

PARTITION   OF   LAND  {continued).  pack 

notice  of,  what  and  to  whom,  unless 381,  382 

where  to  be  brought 376 

registered  land 396 

share  of  petitioner  in  entire  estate  held  by  him  jointly  or  in  com- 
mon, to  be  set  off  to  him,  but  residue  may  be  left  for  future 

partition 378 

share  of  party,  dying  pending,  to  be  assigned  in  his  name  to  his 

estate 387 

trustee,  when  to  be  appointed 383 

water  rights 394 

PERPETUATION   OF  EVIDENCE, 

by  executors  and  administrators,  that  notice  of  their  appointment 

was  given       103 

by  executors,  etc.,  of  payments  under  decree  of  court 366 

by  executors,  etc.,  selling  land  under  license,  that  notice  of  time 

and  place  of  sale  was  given 255 

PERSONAL   ESTATE, 

debts,  etc.,  iield  by  executor,  etc.,  may  be  sold  by  order  of  court   .  185 

distribution  of,  among  heirs 3o4 

final  distribution   of  money   invested   or  deposited  by  order  of 

court 367,  368 

foreign  administrators,  etc.,  may  be  licensed  to  sell 186 

how  to  be  accounted  for 184 

in  hands  of  guardian  or  trustee,  may  be  sold  by  order  of  court 

and  invested 187,  189 

may  be  sold  bj'  executors,  etc.,  without  order  of  court      ....  184 
mortgages  of  land,  and  land  taken  on  execution,  in  hands  of  ex- 
ecutors, etc.,  deemed 185 

sale  of,  may  be  ordered  by  court 184 

vested,  contingent,  or  possible  interest  in,  may  be  sold  by  execu- 
tors, etc.,  under  license 186 

POLICE   COURT, 

may  issue  sc/re/rt«as  against  administrators,  etc. 206 

POSTHUMOUS  CHILDREN, 

guardian  of,  may  be  appointed  by  father  in  his  will 131 

omitted  in  father's  will,  to  take  share  as  of  intestate  estate   .     .     .  352 

"PRESENCE   OF   TESTATOR," 

what  amounts  to 26 

PRESUMPTIONS, 

as  to  attestation  of  witnesses 38 

as  to  death  of  absent  person 118,  357 

as  to  marriage  and  issue  of  absent  heir 367 

as  to  survivorship,  wheii  several  persons  perisli  by  same  calamity  .  358 


784  INDEX. 

PRESUMPTIONS   {continued).  paob 

as  to  testator's  sanity 46 

of  testator's  intention  to  revoke  will 35 

of  testator's  knowledge  of  contents  of  his  will 35 

PROBATE   COURTS, 
history  and  origin  of, 

under  colonj'  charter 1 

under  province  charter 2 

under  state  constitution 3 

jurisdiction,  general  and  in  equity  of 4-10,  157,  158 

abandoned  property  of  non-residents,  appointment  of  receiver 

for  341-346 

absentee's  property,  appointment  of  receiver  for    .     .     .       341-346 

admmistrators,  appointment  of 7,  102 

adoption  of  children 8,  note,  479 

advancements,  determination  of  questions  as  to 361 

agreements  of  decedents,  etc.,  to  convey  real  estate,  enforce- 
ment of 8,  note,  448 

apprenticeship,  complaints  in  cases  of 492 

change  of  name 485,  486 

charitable  funds,  removal  of  trustees  of 163,  164 

children,  adoption  of 8,  note,  479 

children,  petitions  for  care,  etc.,  of 9 

children,  support  of  under  guardiinship 8,  note,  454,  455 

collateral  legacy  and  succession  tax 8,  note,  522 

complaint  for  concealment  of  property 14,175 

compromise  or  arbitration  of  controversies  between  claimants 
under  a  will  and  under  statutes  regulating  descent  and  distri- 
bution, no  power  in  probate  court  to  authorize       .     .     .     .  9,  10,  note 

compromise  of  demands  by  or  against  estate 449 

concurrent,  in  equity,  with  supreme  judicial  and  superior  courts 

of  matters  relative  to  wills,  trusts,  administration,  etc.  .      9,  157,  158 
confirmation  of  certain  defective  and  irregular  acts  and  proceed- 
ings   100,  459 

conservators  of  property  of  aged  and  feeble-minded  persons,  ap- 
pointment of 8,  note,  143 

contempt,  may  punish  for 12,  26 

contingent  remainders,  etc.,  sale  of  land  subject  to    ....      276,277 
court  first  taking  jurisdiction  to  retain  it,  when  case  within  juris- 
diction of  probate  courts  in  two  or  more  counties 10 

curtesy,  assignment  of 327 

curtesy,  release  of,  of  insane  husband  ....      136,  268,  269,  456,  457 
curtesy,  proceeds  of,  reserved  for  husband,  when      ....      137.  457 

defective  acts  and  proceedings,  confirmation  of 10i>,  459 

delivery  of  property  by  executors,  etc.,  to  successors,  enforcement 
of 13,  165 


INDEX.  785 

PROBATE    COURTS  (rontinued).  pao, 

deposits  or  investments 13,14,190,191,206,232,388 

deposits,  unclaimed,  disposal  of 232,  307,  368 

distriliution  of  intestate  estates 354 

dipsomaniacs,  commitment  of 8,  note,  492,  493 

dower,  assignment  of 327,  397 

dower,  release  of,  of  insane  wife      ....  136,  140,  268,  269,  456,  457 

dower,  proceeds  of,  reserved  for  wife 1.37,  268,  401,  458 

enforcement  of  delivery  of  property  by  executors,  etc.,  to  succes- 
sors     13,  165 

equity  jurisdiction,  concurrent  with  supreme  judicial  and  superior 
courts  as  to  trusts,  wills,  and  administration  of  estates  of  dece- 
dents       9,  157,  158 

exclusive  and  original  jurisdiction,  when 7,  10,  455 

executors,  etc.,  appointment  of 7,  8 

feeble-minded,  commitment  of 8,  note 

French  spoliation  awards 8,  note,  446,  447 

guardians,  appointment  of 8,  note,  126 

complaints  for  concealment  of  property  by 175 

delivery  of  ward's  property  to  successor,  enforcement  of    .   13,  165 

leases  by,  of  ward's  real  estate 278 

sales  by,  of  ward's  real  estate 263 

homestead,  setting  off  and  sale  of 264,  423,  425 

release  of,  by  guardian  of  insane  person    .     .     .     136,  140,  268,  457 

insolvent  estates  of  deceased  persons 211-238 

inebriates,  commitment  of 8,  note,  492,  493 

insane  persons,  commitment  of 8,  note,  492,  493 

investments  or  deposits  by  executors,  etc 13,  190,  232 

jointure,  assignment  of 339 

juvenile  offenders,  commitment  of 491,  492 

legacies,  distribution  of 359 

liberty,  personal,  proceedings  to  obtain  when  wrongful  depriva- 
tion of 8,  note 

married  women,  petitions  relative  to  separate  estate  of      ....        9 
support  of,  when  iivmg  apart  from  husbands      .     .     .      451,  463 

minors,  appointment  of  guardians  for 126 

authorization  of  marriage  of, 8,  note 

petitions  for  care,  etc.,  of 9,  452,  455,  463 

petition  for  support  of 8,  note,  129,  452,  455 

partition  of  real  estate,  concurrent  with  superior  court   .     .     .    374 

of  registered  land 396 

religious  societies,  removal  of  trustees  of 163,  164 

rules  and  forms  of,  to  make     ....  ........       11 

sales  and  mortgages  of  land  by  conservators    .     .     .     143,  263-270,  273 

by  executors,  etc 8,  note,  239-263,  272,  273 

by  guardians 263-270,  273 

50 


786  INDEX. 

PROBATE   COURTS  (continued).  page 

for  payment  of  collateral  succession  tax    ....      208,  note,  518 

by  receivers 8,  note,  344,  345 

of  registered  land,  by  receivers,  etc 492 

by  trustees 8,  note,  137,  187,  240,  note,  273 

sales  of  personal  property  by  executors,  etc 184 

specific  performance  of  decedent's  or  ward's  agreement  to  convey 

real  property 8,  note,  448 

support  of  minor  child  by  parents        8,  note,  129 

of  children  or  wife  of  insane  person  under  guardianship       183,  310 

taxes,  apportionment  of,  on  collateral  legacy 208,  518 

taxes  on  collateral  legacies  and  successions,  to  determine  all  ques- 
tions relative  to 8,  note,  522 

trustee,  appointment  of,  etc 144-158 

trusts  created  by  will  or  other  written  instrument,  in  equity    9,  157,  158 

(sessions  of) 26,  27,  488-491 

adjournment  of 27 

always  to  be  open  for  hearing,  etc 26,  27 

holiday,  time  of  holding  when  regular  term  occurs  on       ....      27 
PROBATE   OF   WILL, 

citation  on  petition  for 71 

dispensed  with,  when 72 

how  served 71 

conclusively  establishes  due  execution 29 

facts  necessary  to  be  proved  for 30,  31 

necessary,  to  give  it  effect 30 

not  barred  by  partial  revocation 6t) 

of  nuncupative  wills 83-87 

of  wills  accidentally,  etc.,  lost  or  destroyed 79 

of  wills  made  out  of  the  State 78 

petition  for,  to  be  filed  with  will 71 

certificate  to  be  appended  to 71 

PUBLIC   ADMINISTRATOR, 

accounts  to  be  rendered  by 279,  282 

appointment  of,  notice  to  be  given  within  three  months    ....     192 

afiidav it  of  notice  of  appointment  to  be  made  by 193 

proceedmgs  when  notice  not  given 193 

authority  of,  over  estate  ceases,  if  husband,  widow,  etc.,  takes 

administration 114 

bond  of 121 

deposit  by,  of  balances  with  state  treasurer 282,  367 

duty  of,  on  appointment  of  executor  or  administrator  as  successor    282 

duties  of,  how  enforced 369,  370 

entitled  to  administer,  when 114 

not  entitled  to  administer,  when  husband,  widow,  or  heir  claims 
administration,  or  requests  appointment  of  some  suitable  person     114 


INDEX.  787 

PUBLIC    ADMINISTRATOR  (continued).  page 

inventory,  to  be  returned  by 168 

letters  to  be  revoked,  if  will  of  deceased  is  afterward  proved     .     .  165 

limitation  of  actions  against 195 

neglect  of,  to  return  inventory  or  perform  otiier  duties     ....  283 

not  liable  to  actions  within  one  year,  except 202 

notice  to,  of  application  of  heir,  etc.,  to  take  administration,  what 

required 309 

may  adjust  claims  by  arbitration  or  compromise  when  authorized 

by  court 449 

may  give  separate  bond  for  each  estate  or  general  bond   ....  121 

may  be  licensed  to  sell  lands  for  payment  of  debts 239 

after  three  years  may  be  licensed  to  sell  lands  not  required  for 

payment  of  debts,  when 271 

proceedings  in  such  case 271 

may  represent  estate  insolvent 212 

sales  of  property  by,  how  authorized 271 

surrender  by,  of  letters  of   administration,    on    appointment    of 

executor  or  administrator 282 


R. 

REAL  ESTATE, 

descent  of.     (See  Descent. ) 

held  by  executors,  etc.,  in  mortgage  or  on  execution,  deemed  per- 
sonal estate 245 

income  of,  to  be  accounted  for  by  guardians  and  trustees      .     .     .  306 

to  be  accounted  for  by  executors  and  administrators,  when    .  293 

may  be  sold  for  distribution,  when       240 

partition  of.     (See  Partition.) 

specific  performance  of  agreement  for  sale  of,  how  enforced      .     .  448 

surplus  of  proceeds  of  land  sold  by  executors,  etc.,  to  be  deemed 

and  disposed  of  as 261,  330 

REGISTER  OF   PROBATE, 

appraisers,  may  be  appointed  by 23 

assistant  registers,  appointment  of 28 

attachment,  process  of,  to  issue 23 

bonds,  approval  of  sureties  in 428,  429 

bond,  to  give 22 

care  and  custody  of  books  and  papers 22 

certified  copy  of  will,  inventory,  etc.,  to  make  one  without  charge 

and  deliver  to  executor,  etc 17 

citations,  etc.,  to  issue 18 

docket,  to  keep  a 12,  13 

clerk,  may  be  appointed  by  register  of  probate  of  Suffolk  county  .  24 

execution,  to  issue 23 


788  INDEX. 

REGISTER   OF    PROBATE  (contnuied).  pagh 

fees,  to  pay  over  to  state  treasurer 23 

index,  to  keep  a 13 

inspection  of  doings  of,  to  be  made  by  judge 24 

may  be  appointed,  in   another   county,   guardian   of  liis   minor 

child       26 

not  to  act  as  counsel  or  attorney 26 

not  to  liold  certain  trusts,  nor  to  be  interested  in  fees  or  emolu- 
ments      25,  26 

oaths  to  be  taken  by 21,  22 

records,  to  furnish  copies  of 23 

releases,  etc.,  to  record  at  request  of  party  interested   ....     16,  17 

suits  on  bond  of 25 

temporary,  when  appointed , 25 

REGISTERED   LAND, 

partition  of 396 

sale  or  mortgage  of 492 

RELIGIOUS  SOCIETIES, 

may  appoint  trustees,  when 152 

REMAINDERS, 

belonging  to  estate  of  deceased  person,  may  be  sold  for  payment 

of  debts 243,  note 

land  subject  to  contigent,  may  be  sold  by  trustee 149 

to  be  inherited 320 

REMOVAL  OF  EXECUTORS,  ADMINISTRATORS,  GUARDIANS, 
AND  TRUSTEES, 

as  to  appeal  from  decree  making  removal 166 

decrees  making  removals,  effective,  pending  appeal,  unless  .    .     .     166 

grounds  for  removal 159,  161,  162 

conflict  of  interest 159 

incapacity 'or  insanity 159 

neglect  to  furnish  bond  or  to  render  account  when  required    .     159 

unfaithful  administration 162 

unsuitability 161 

lawful  acts  of  executors,  etc.,  remain  valid,  although  removed  .     .     164 
one  of  two  executors  removed,  other  to  proceed  in  the  trust      .     .     163 

petition  for,  by  any  person  interested 164 

proceedings  for 163,  164 

of  trustee  ho'ding  funds  given  to  a  city  or  town  for  charitable, 

etc.,  purposes,  for  neglect  to  make  annual  exhibit  ....     163 

to  be  on  petition  of  five  persons 164 

of  trustee,  when  essential  to  interests  of  parties  concerned     .     .     .     163 

REPRESENTATION, 

inheritance  by  right  of 346,  347 


INDEX.  789 

RENTS  OF  REAL  ESTATE,  paok 

belong  to  heirs  or  devisees 293 

to  be  accounted  for  by  executors  and  administrators,  when   .      293,  294 
to  be  accounted  for  bj'  guardians  and  trustees 305 

RESIGNATION    OF    EXECUTORS,     ADMINISTRATORS,     GUAR- 
DIANS, AND  TRUSTEES, 

accounts  first  to  be  settled 165 

allowed  by  court,  when 164 

REVERSIONS, 

belonging  to  estate  of  deceased  persons,  may  be  sold  for  payment 

of  debts 243,  note 

inheritable 320,  note 

REVOCATION, 

of  decrees  of  probate  court 12,  note 

REVOCATION  OF  WILL, 

effect  of,  on  codicil 64 

manner  of 59 

express,  by  burning,  tearing,  etc 61 

by  codicil 64 

declarations,  to  explain  testator's  intention 62 

declared  intention,  witiiout  act,  not  sufficient 62 

dependent  on  testator's  intention       62 

later  mconsistcnt  will 64 

presumptions  as  to  intention 63 

revocatory  writing 66 

implied,  from  alteration  of  estate 68 

from  marriage 67,  68 

exempt,  when  will  makes  provisions 67,  68 

not  rebutted  by  parol  evidence 67 

not  from  increase  in  value  of  estate 69 

not  from  insanity  of  testator 69 

not  from  partition  by  tenants  in  common 69 

partial 64 

REVOCATORY  WRITING, 

how  to  be  executed 66 

"RIGHT  OF  REPRESENTATION." 

inheritance  by,  how  construed 346,  347 

RULES  OF  PROBATE  COURTS, 

authority  to  make 10,  11 

equity  rules 531-538 

probate  rules 527-531 


790  INDEX. 


s. 

SALE  OF  LAND,  p^g, 

by  executors  and  administrators  (see  Executor,  sale  of  real  estate  by) 

239-262 
by  foreign  executors  and  administrators  (see  Non-Resident  Execu- 
tors and  Administrators) 262,  263 

by  guardians  (see  Guardian,  sale  of  real  estate  by) 263-270 

by  foreign  guardian  (see  Non-Resident  Guardian)     ....       270-272 

by  public  administrator  (see  Public  Administrator) 271 

by  trustees 274,  275 

on  petition  of  friend  of  a  minor 

proceedings  on  such  petition 265 

proceeds  of,  in  sucii  case,  how  disposed  of 265 

SCIRE  FACIAS, 

issue  of  writs  of,  by  police,  district  and  municipal  courts  against 

administrators,  etc 206 

SECRETARY  OF  COMMONWEALTH, 

to  publish  annually  changes  of  names 486 

SESSIONS  OF  PROBATE  COURTS, 

times  and  places  of 488-491 

SET-OFF, 

by  administrator,  etc.,  when  sued,  of  demands  of  intestate,  etc.  .  205 
of  debt  of  deceased  in  action  by  administrator  or  executor  .  .  .  205 
of  debt  due  estate  from  heir,  against  distributive  share     ....     359 

of  debt  due  estate  from  legatee,  against  legacy 207 

probate  court  to  determine  validity  and  amount  of  debt   .     .      207,  359 

SISTERS, 

when  entitled  to  administer  as  next  of  kin        110 

when  to  inherit 321 

SIGNATURE   OF   TESTATOR. 

what  is  sufHcient 32 

SOLDIER, 

in  actual  military  service,  may  make  nuncupative  will     ....      83 

in  actual  military  service,  when 86 

nuncupative  will  of,  how  made  and  proved .      86,  87 

"SOUND   MIND," 44-56 

SPECIAL   ADMINISTRATOR, 

appointment  of 104 

authority  of 123,  242,  note 

bond  of 121 

certain  expenses  and  debts  may  be  paid  by 299,  note 

may  act,  pending  appeal,  unless 123 

not  liable  to  action  by  creditor 199 

who  entitled  to  be  appointed 107,  108 


INDEX.  791 

SPECIFIC  PERFORMANCE,  paob 

of  written  agreement  for  conveyance  of  lands,  when  party  dies  or 

is  put  under  guardianship 448 

conveyance,  how  ordered 448 

effect  of 448 

SPENDTHRIFTS, 

guardians  of,  appointment  of 133-136 

sales  of  property  of 2G6 

STANDING  WOOD  AND  TIMBER, 

held  in  dower,  etc.,  when  may  be  sold 150,  450 

on  land  of  ward,  guardian  authorized  to  sell  by  license  of  court     .     264 
trustee  may  be  appointed  to  sell  and  invest  the  proceeds  .     .      150,  450 
SUCCESSIONS.     (See  Collateral  Inheritance  Tax.) 
SUICIDE, 

as  evidence  of  insanity 48 

SUPERIOR  COURT, 

appeals  from  probate  court  in  certain  cases 6,  note,  463 

SUPREME  COURT  OF  PROBATE, 

supreme  judicial  court  constituted       6 

appeal  to,  from  probate  court,  by  whom  may  be  taken      ....  463 

when  to  be  claimed  and  entered        467 

proceedings  on 467,  468 

may  make  rules  regulating  proceedings  in  probate  court  ....  11 
may  re-examine  on  appeal  and  affirm  or  reverse  decrees  of  probate 

court 6 

SURETIES, 

in  probate  bonds  to  be  inhabitants  of  this  state 428 

and  such  as  the  judge  or  register  approves 428 

liable,  when  principal  gives  new  bond,  for  all  breaches  prior  to 

approval  of  new  bond 432 

may  be  discharged,  when  court  decrees  it  reasonable  and  proper   .  431 

may  have  suit  continued  when  resident  principal  not  made  a  party  .  442 
SURVIVORSHIP, 

not  presumed,  when  all  perish  in  same  calamity 358 


T. 

TABLES, 

for  ascertaining  present  value  of  life  estate  and  of  widow's  dower    420, 

421 
TAX, 

on  collateral  inheritances,  etc.     (See  Collateral  Inheritance  Tax.) 
TEMPORARY  REGISTER  OF  PROBATE, 

appointed,  when 25 

oath  of 26 


792  INDEX. 

TP:STAT0R.     (See  TT7//.) 

TOWN,  P^OB 

may  be  trustee,  when 152 

TREASURER  OF   COMMONWEALTH, 

collateral  inhf.ritance  and  succession  tax,  to  be  payable  to       ....     517 
to  apply  for  appointment  of  administrator  on  estates  subject 

to,  when       532 

to  cause  property  subject  to,  to  be  appraised 521 

to  pay  fee  of  appraisers 521 

copy  of  inventory  of  property  subject  to,  register  of  probate 

to  send  to 519 

toenforce  penalty  for  faihiretofile  inventory  of  estate  subject  to     519 
to  be  made  party  to  all  petitions  by  foreign  executors,  etc.,  for 
license  to  receive  and  dispose  of  personal  property  .     .         .52 

to  be  notified  of  real  estate  subject  to 519 

to  rejiresent  commonwealth  in  all  court  proceedings  for  deter- 
mining questions  relative  to 522 

to  sue  in  his  own  name  for  unpaid  tax     .     .     .     280,  523,  and  note 
TRUST   COMPANY, 

domestic,  may  be  appointed  administrator,  executor,  guardian,  or 

trustee 96,  108,  129,  144,  note,  153 

TRUSTEE, 

accounts  of.     (See  Accounts.) 

appointed  by  will  should  petition  probate  court  to  confirm  appoint- 
ment       153 

appointed,  in  what  cases 144-153 

under  will,  when  necessary  to  carry  its  provisions  into  effect  .     144 

under  written  instrument,  to  fill  vacancy        145 

when  tenant  for  life  or  years  and  remainderman  or  reversioner 
sustain  damages  in  their  property  by  laying  out,  etc.,  of 
higliway  or  by  the   taking  of   land  for   public  uses,  and 

entire  damages  are  assessed 146,  147 

when,  in  partition  of  land,  an  estate  for  life  or  years  belongs 

to  one  person  and  the  remainder  to  another 148 

when  husband  or  wife  waives  provision  of  will  and  becomes 

entitled  to  property  exceeding  •'?10,000  in  value 148 

when  probate  court  authorizes  sale  of  land  subject  to  contin- 
gent or  vested  remainder 149 

when  standing  wood  or  timber  on   land  subject  to  estate  for 

life  or  j-ears  have  ceased  to  improve,  to  sell 150 

when  person  seised  of  real  or  personal  estate  upon  a  trust  is 
a  minor,  insane,  out  of  the  state,  or  not  anienal)le  to  legal 

process,  trustee  to  convey  may  be  appointed 278 

appointment  of 144-157 

notice  of  petition  for,  to  be  given       144,  145,  150 


INDEX.  793 

TRUSTEE    [continued).  paob 

bond  of 150,  >54 

none  required  of  trustees  of  charitable  trust 156 

exempt  from  giving  sureties,  when 156 

cemetery  corporation  may  hold  in  trust  funds  for  certain  purposes  .     152 
city  or  town  may  iiold  in  trust  funds  for  care,  etc.,  of  cemeteries 

and  burial  lots,  and  for  laying  out  or  improving  parks  ....     152 
churches  or  religious  societies  may  appoint  trustees  to  hold  prop- 
erty given  to  such  churches  or  societies 152 

collateral  legacies  and  successions,  taxes  on  to  be  paid  .     204,  note,  208. 

note 
delivery  of  property  by,  to  successor,  enforcement  of       ...    13,  1G5 
deriving  appointment  from  a  court  having  no  jurisdiction  in  this 
commonwealth  and  holding  land  in  this  commonwealth  for  resi- 
dents here,  to  take  out  letters  of  trust  from   probate  court  in 

county  where  the  land  lies 151 

embezzlement  by,  liability  for 503 

incorporated  and  unincorporated  religious  societies  and  churches 
may  appoint  trustees  to  hold  funds  given  for  their  benefit     .     .     153 

inventory  to  be  rexurned  by  when  directed  by  court 169 

what  to  include  and  by  whom  made 171-173 

mortgage  of  real  estate  by 273 

non-resident,  to  appoint  agent  in  this  commonwealth     .     .     .      154,  194 

petition  for  appointment  of 153 

real  estate,  when  may  be  conveyed  by,  free  from  curtesy  or  dower 

of  insane  person 269 

release  by,  of  certain  vested,  contingent,  or  possible  interests  in 

real  property,  when  authorized         272 

sale  and  mortgage  by,  of  estates  subject  to  remainders    ....    276 

trust  companies,  domestic,  ma^'  be  appointed 108 

removal  and  resignation  of 159-166 

decrees  making  removals,  effective,  pending  appeal,  unless     .     166 

grounds  for  removal 159,  162,  163 

conflict  of  interest 159 

incapacity  or  insanity 159 

neglect  to  furnish  bond  or,  when  holding   funds   given 
to  a  city  or  town  for  charitable  and  other  purposes, 

neglect  to  make  annual  exhibit 159,  163 

removal  from  state  and  failure  to  appoint  agent  here   .     .     162 

unfaithful  administration 163 

unsuitability 163 

removal  of,  petition  for 163 

petition   for,  when   holding  funds  given  to  city  or  town  for 
charitable  and  other  purposes,  to  be  signed  by  five  persons  .     164 

notice  of  petition  to  be  given 164 

sale  and  investment  by,  of  real  or  personal  property 187 


794  INDEX. 

TRUSTEE   PROCESS,  page 

against  administrators,  etc 499 

TRUSTEES.     (See  also  r™s/ee.) 

general  equity  jurisdiction  of 157 

termination  of  certain 157 


u. 

UNDUE   INFLUENCE, 

degree  of,  to  invalidate  will 56,  57 

evidence  of 57 

may  be  invalidated  in  part  only,  by 59 

will  obtained  by,  void 66 


V. 

VESTED   RIGHTS, 

in  real  or  personal  estate,  may  be  released  by  order  of  probate 
court 186 

VOTING  AT   CORPORATION  MEETINGS, 

right  of,  possessed  by  executor,  etc 502 


W. 

WARRANTS   OR   COMMISSIONS  OF  PROBATE  COURT, 

may  be  revoked 12 

WEARING   APPAREL, 

of  widow,  and  of  minor  children  of  a  deceased  person,  belongs  to 
them 177 

WIDOW, 

advancements,  value  of,  to  be  deducted  in  determining  share  of, 

in  husband's  property 363 

entitled  to  administer  husband's  estate,  when 110 

no  right  to  name  administrator,  if  she  renounces  administra- 
tion      110 

no  right  to  other  than  original  administration 114 

entitled  to  allowance  for  necessaries  from  husband's  estate  .  .  .  328 
entitled  to  use  of  husband's  house,  free  of  charge,  for  six  months  .  329 
rights  of,  in  husband's  property  (see  Descent  of  Real  Estate,  rights 

of  wife  in  husband's  property) 326-336 

"(See  Dower 327,397-427) 

waiver  of  will  by 330,  331 

WIFE.     (See  Married  Woman.) 


INDEX.  795 

WILL,  PAGE 

agreements  to  make,  or  to  give  legacies 88 

allowance  and  probate  necessary  to  make  effective 29,  30 

administration  revoked  upon 165 

decree  for,  conclusive  as  to  capacity  of  testator  and  due  exe- 
cution, unless  appealed  from       29 

conclusive,  after  two  years,  in  favor  of  purchasers  for 

value,  etc 29,  note,  119,  note 

attestation  of,  by  three  competent  witnesses 30 

witnesses  must  sign  in  presence  of  testator  and  where  he  can 

see  them  subscribe 36 

witnesses  need  not  sign  in  presence  of  each  other 38 

children  dying  before  testator,  effect  upon    .....       206,  note,  352 
adopted  ciiild  included  in  "  child,"  when  ....       483,  483,  note 

issue  to  take  by  right  of  representation,  when 352 

omitted  children  or  issue  of  deceased  child  entitled  to  share 

as  if  parent  intestate,  unless 349 

contribution  by  devisees  or  legatees  to  omitted  or  posthumous 

child 352 

competency  of  attesting  witnesses 39-42 

beneficial  devise  or  legacy  to  subscribing  witness  to  a  will,  or 
to  the  husband  or  wife  of  such  witness,  void  unless  three 

other  competent  subscribing  witnesses        40 

creditor  a  competent  witness 40 

person  convicted  of  infamous  crime  not  competent  witness  40,  41 
competency  to  be  determined  as  of  time  of  execution  of  will  .  .  41 
compromise  of,  only  supreme  judicial  court  jurisdiction  to  authorize  89 

concealment  of,  proceedings  on  complaints  for 92 

deposit  in  registry  of  probate,  if  testator  desires       91 

delivery  of,  after  such  deposit,  in  testator's  lifetime,  how  obtained       91 

to  whom 92 

execution  of       31-39 

attestation  by  witnesses 86-39 

signature  by  testator 31-36 

facts  to  be  proved  in  support  of 31 

formal  proceedings  in  probate  of 70-77 

petition  and  notice 71 

hearing  and  evidence 72-76 

foreign  will,  allowance  of 81-83 

incorporation  of  paper  by  reference  in 77 

invalidated  by  fraud  and  undue  influence 55 

attorney  who  drafted  will  may  testify  as  to  directions  given 

him  by  testator 59 

persuasions  and   suggestions  do  not  necessarily  amount  to 

undue  influence 57 

testator's  declarations  admissible       58,  note 


796  INDEX. 

WILL    {continued).  page 

lucid  intervals 53 

memory  of  testator,  "  disposing  "  necessary 44,  45 

monomania 54 

sanity  of  testator,  evidence  on  question  of 46-55 

persons  competent  to  give  in  evidence  their  opinions  as  to      .      48 

presumption  in  favor  of 46 

what  testimony  admissible  to  show  insanity 48-55 

married  woman  may  make       ...         30 

of  married  woman,  deserted  by  husband  or  justifiably  living  apart 
from  him,  provisions  of  cannot  be  waived  by  husband  .     .      30,  note 

lost,  proof  of 79-81 

made  out  of  state,  proof  of 78 

nuncupative,  proof  of 83-87 

requirements  of 85 

persons  of  full  age  and  sound  mind  may  make 30 

posthumous  child,  to  share  as  if  parent  died  intestate 352 

publication  of,  formal  not  necessary 34 

seal  not  required 35 

revocation  of 59-70 

express  revocation  of, 60-67 

by  burning,  tearing,  etc 59-64 

by  execution  of  new  will  or  codicil 64-67 

implied  revocation  of 67-70 

by  change  in  condition  and  circumstances  of  testator      ...      67 

by  marriage 68 

not  by  change  in  value  of  property 69 

signature  by  testator 31 

where  to  be  made 32 

may  be  by  mark 32 

may  be  written  by  another  person  by  testator's  direction  and 

in  his  presence 32 

need  not  be  in  presence  of  witnesses,  but  must  be  acknowl- 
edged in  their  presence 33 

Sunday,  executed  on,  valid 36 

waiver  of,  by  husband  or  widow 330,  331 

what  passes  under 87,  89 

witnesses  to.     (See  Attesting  Witnesses.) 

WITNESSES, 

fees  of       505 

to  wills 36-42 

WRITTEN  AGREEMENT, 

to  sell   land,  enforcement  of,  when  party  dies  or  is   put  under 
guardianship 448 


INDEX    TO    PROBATE    FORMS. 


ABSENTEE,  page 

petition  for  receivership  of  estate  of 726 

order  of  notice 727 

return  of  service  of  order  of  notice 728 

warrant 729 

decree 729 

ACCOUNTS, 

administrator 621 

executor 623 

trustee 625 

guardian 627 

appointment  of  guardian  ad  litem  and  next  friend  for 638 

ADMINISTRATION, 

with  sureties,  petition 539 

without  sureties,  petition 540 

de  bonis  non,  petition 541 

special,  petition 542 

pubhc,  petition 542 

with  will  annexed,  petition 546 

de  bonis  non,  with  will  annexed,  petition 547 

presumption  of  death,  petition 717 

presumption  of  death,  with  will  annexed,  petition 713 

ADOPTION  AND  CHANGE  OF  NAME, 

petition 657 

AFFIDAVIT  OF  NOTICE  OF  APPOINTMENT, 

administrator , 581,  599 

de  bonis  non , 583 

agent 600 

public  administrator 586 

executor 588,  591,  601 

agent 602 

foreign  will 590 

administrator,  will  annexed 598,  603 

agent 604 


798  INDEX. 

AMENDMENT,  vkots 

of  record,  petition 735 

APPEARANCE 691 

APPOINTMENT,  &c 627 

of  agent 686 

of  guardian  ac? /item  and  next  friend 689 

of  guardian  ad  litem  and  next  friend,  account 698 

of   next  friend  and  guardian  for  tiie  case,  in  sale  of  real  estate 

subject  to  vested  or  contingent  remainder 647 

APPRAISAL, 

petition  for  revocation  of  warrant,  and  for  new  warrant    ....  609 

ASSIGNMENT  OF  DOWER, 

petition 662 

warrant 663 

report 664 

ASSIGN.MENT  OF  HOMESTEAD, 

petition 660 

warrant 661 

report 662 

ASSIGNMENT  OF  REAL  ESTATE  IN  FEE, 

petition 665 

warrant 666 

report 667 

by  Court,  petition 733 

ASSIGNMENT  OF  WIDOW'S  LIFE  ESTATE, 

petition 667 

warrant        668 

report 669 

AUDITOR, 

rule  to .617 

BOND, 

of  administrator,  with  sureties 578 

without  sureties 548 

de  bonis  non,  with  sureties 550 

without  sureties 551 

will  annexed,  with  sureties 559 

without  sureties 561 

de  bonis  non,  with  sureties 562 

presumption  of  death 718 

with  will  annexed,  presumption  of  death 714 

of  special  administrator 553 

of  public  administrator 554 

of  executor,  with  sureties 556 


INDEX.  799 

BOND    (continued).  page 

of  executor  without  sureties 557 

to  pay  debts,  residuary 558 

presumption  of  death 710 

of  guardian,  with  sureties 564 

without  sureties 665 

of  insane  person 740 

spendthrift  ■ 567 

of  conservator 693 

of  receiver  of  absentee's  estate 730 

of  trustee,  with  sureties 668 

without  sureties 570 

with  sureties,  inventory  not  required 571 

without  sureties,  inventory  not  required 572 

under  deed -    .     .     .  723 

of  heir,  presumption  .of  death 722 

in  case  of  sale  of  real  estate  subject  to  vested  or  contingent 

remainder 646 

petition  for  new 579 

BURIAL  LOT, 

perpetual  care  of,  petition 703 

BUSINESS, 

petition  of  special  administrator  for  leave  to  carry  on       .     .    .    •  709 

CHANGE  OF  NAME, 

petition 658 

copy  of  decree 659 

certificate 660 

CLAIM   OF   APPEAL 690 

CLAIM   OF  DOWEK  OR   CURTESY 744 

COMPROMISE, 

petition  to  arbitrate 629 

CO  N  SE  R  V  ATO  RS  H  IP, 

of  aged  person,  petition 692 

CUSTODY  OF  CHILDREN, 

petition 657 

DEBTS, 

petition  by  special  administrator  for  leave  to  pay 702 

DECLINATION 683 

DEPOSIT, 

of  legacy,  petition 696 

payment  of,  petition 697 

in  savings  bank,  petition "739 


800  INDEX. 

DESERTION  AND  LIVING  APART,  paob 

petition • 656 

DISCHARGE   FROM   GUARDIANSHIP, 

petition 681 

DISCHARGE    OF   SURETY  ON   BOND, 

petition 682 

DISTRIBUTION, 

warrant 619 

report 620 

intestate  estate,  petition 620 

of  legacy  among  a  class,  petition 734 

among  a  class,  trust  estate,  petition 734 

presumption  of  death,  petition 721 

EMBEZZLEMENT, 

complaint 688 

EQUITY, 

petition 691 

decree       692 

injunction 636 

GUARDIANSHIP, 

of  minors,  petition 574 

of  insane,  petition 575 

of  spendthrift,  petition 575 

letter  to  foreign  guardian 576 

INJUNCTION 696 

INSOLVENCY, 

representation 610 

representation,  claims  to  be  examined  by  court 699 

INSOLVENT   ESTATE, 

order  to  administrator  to  notify  creditors  to  present  claims    .       611,  701 

form  of  notice  of  administrator  to  creditors 612,702 

warrant  to  commissioners 613 

report 614 

form  of  notice  of  commissioners  to  creditors 615 

petition  for  new  commissioner,  and  extending  time  for  allowing 

claims 615 

order  for  distribution 616 

report  on  order  for  distribution 617 

INVENTORY, 

administrator 605 

executor 606 

guardian 607 


INDEX.  801 

INVENTORY   {continued).  .  page 

trustee       .     .     .    " 608 

petition  to  render,  and  account 617 

order  to  render,  or  account 618 

LEASE  OF  REAL  ESTATE  BY  GUARDIAN, 

petition 690 

LETTER, 

of  administrator 580 

de  bonis  non 582 

presumption  of  death 720 

of  special  administrator 584 

of  public  administrator 584 

of  executor 587 

residuary 591 

presumption  of  death 712 

on  foreign  will 589 

of  administrator  with  will  annexed 592 

presumption  of  death 716 

of  guardian 594 

of  guardianship  to  foreign  guardian 595 

of  conservator 695 

of  receiver  of  absentee's  estate 732 

of  trustee 595 

not  requiring  inventory 596 

under  deed 725 

MARRIAGE, 

of  minor,  petition  for  license  of 698 

MORTGAGE  OF  REAL  ESTATE, 

executor,  administrator,  petition 648 

guardian,  petition 648 

trustee,  petition 649 

NOTICE  OF  APPOINTMENT, 

executor 597 

agent 597 

administrator 598 

/                      agent 598 

will  annexed 599 

agent 599 

petition  for 683 

PARTITION  OF  REAL  ESTATE  AMONG  HEIRS, 

petition 670 

appointment  of  agent 671 

51 


■  802  INDEX. 

PAETITION  OF   REAL   ESTATE,  ETC.    {continued).  pag« 

notice  by  commissioners 671 

warrant 672 

report 673 

PARTITION  OF   REAL  ESTATE   AMONG   TENANTS   IN 
COMMON, 

petition 674 

warrant 674 

report 675 

PARTITION  AND  SALE  OF  REAL  ESTATE  AMONG 
TENANTS   IN   COMMON, 

petition 676 

sale  of  lands  by  commissioners,  bond 677 

warrant 678 

report 679 

petition  by  commissioners  for  sale 741 

PRESUMPTION   OF   DEATH, 

probate  of  will,  petition 649 

bond  of  executor 650 

executor's  letter 652 

administration  with  will  annexed,  petition 653 

bond  of  administrator  witli  will  annexed 654 

letter  of  administrator  witli  will  annexed 656 

administration,  petition 657 

bond  of  administrator 658 

letter  of  administrator 660 

petition  for  distribution 661 

bond  of  heir 662 

RECEIVERSHIP, 

of  absent  person's  estate;  petition 666 

RELEASE  OF  RIGHT  OF  DOWER  OF  AN  INSANE  WOMAN, 

petition 647 

REMOVAL, 

petition 681 

RESIGNATION 683 

SALE  OF  PERSONAL  ESTATE, 

petition 645 

by  foreign ,  petition 646 

SALE   OF  REAL  ESTATE, 

public,  executor  or  administrator,  petition        629 

license 631 

affidavit 631 


INDEX.  803 

SALE    OF   REAL    ESTATE    [continued).  paob 

private,  executor  or  aciministrutor,  petition       632 

license 634 

administrator,  distribution,  petition *  .     .  634 

license G35 

public,  guardian,  maintenance,  petition 636 

notice  to  overseers  of  poor  of  sale 637 

license 637 

affidavit 638 

private,  guardian,  maintenance,  petition        638 

license 639 

public,  guardian,  investment,  petition 640 

license 641 

affidavit       641 

private,  guardian,  investment,  petition 642 

license 643 

subject  to  contingent  remainder,  petition 704 

subject  to  vested  remainder,  petition 705 

subject  to  vested  or  contingent  remainder,  bond 706 

subject  to  vested  or  contingent  remainder,  appointment  of  next 

friend  and  guardinn  for  the  case       707 

SALE   OF   TRUST  ESTATE, 

real,  personal,  trustee,  petition 643 

appointment  of  next  friend 645 

SEPARATE    SUPPORT 

petition 650 

order  of  notice  and  attachment 651 

petition  to  charge  trustee  and  for  execution 736,  737 

execution 658 

execution,  trustee       738 

capias 654 

mittimus  for  contempt 655 

SPECIFIC   PERFORMANCE, 

petition 708 

SUIT   ON   BOND, 

petition  for  leave  to  bring 743 


TRUSTEESHIP, 

to  fill  vacancy,  petition 742 

with  sureties,  petition 676 

without  sureties,  petition 577 

under  written  instrument,  petition 723 

waiver  of  will 744 


804  INDEX. 

WIDOW'S  ALLOWANCE,  pags 

petition 689 

WILL, 

petition  for  probate,  with  sureties 543 

without  sureties 544 

foreign,  petition  for  allowance  of 545 

petition  to  take  deposition  to 684 

deposition  of  witnesses  to 685 

presumption  of  death,  petition  for  probate 709 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  857  054    i 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


AUG   1  3  1974 


Form  L9-Series4939 


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